Com. v. Burrell, D.

J-S12010-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA

v.

DONALD CHARLES BURRELL

Appellant No. 660 MDA 2016

Appeal from the Judgment of Sentence November 9, 2015
In the Court of Common Pleas of Bradford County
Criminal Division at No(s): CP-08-CR-0000178-2014

BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J. FILED JUNE 28, 2017

Appellant, Donald Burrell, appeals from the judgment of sentence

entered after a jury convicted him of over 200 crimes arising from the sexual

abuse of his daughter. Burrell asserts that the trial court committed the

following errors: (1) determining that he was competent to stand trial; (2)

denying his motion to suppress evidence seized from his computer; (3)

allowing evidence of all charged crimes to be presented at trial; (4)

determining that the evidence at trial was sufficient to support his

convictions; and (5) imposing an excessive sentence. After careful review,

we conclude that the trial court did not err or abuse its discretion on any of

these issues, and therefore affirm.

In 2013, Burrell was charged with sexually assaulting his daughter

consistently over a 20 year period. He had previously been charged with
J-S12010-17

many of the same crimes in 2002, but after his daughter had recanted, the

Commonwealth nolle prossed the charges. The charges were filed again in

2013, alongside charges arising from conduct occurring between 2002 and

2013.

In pre-trial motions, Burrell raised the issue of his competency to

stand trial, whether double jeopardy barred the prosecution of the crimes he

had been charged with in 2002, and whether the search warrant for his

computer was overbroad. After the trial court denied all three motions, the

case proceeded to a jury trial.

At trial, the victim testified that Burrell kept a calendar that

memorialized the abuse, as well as assorted other evidence. The calendar

recorded over 200 incidents of sexual intercourse between Burrell and his

daughter. The jury found him guilty on all charges.

The trial court subsequently sentenced Burrell to an aggregate

sentence of 1,031 to 2,546 years of imprisonment. It accomplished this

sentence by running the sentences for all non-merged convictions

consecutively. Burrell filed post-sentence motions, which the trial court

denied. This timely appeal followed.

In his first issue, Burrell argues that the trial court erred in concluding

that he was competent to stand trial. “A defendant is presumed to be

competent to stand trial, and the burden is on the defendant to prove by a

preponderance of the evidence that he is incompetent to do so.”

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Commonwealth v. Blakeney, 108 A.3d 739, 752 (Pa. 2014) (citation

omitted), cert. denied, 135 S.Ct. 2817 (2015).

Competency to stand trial is measured by the relationship
between counsel and client: To be deemed competent, the
defendant needs to have the ability to consult with counsel with
a reasonable degree of understanding, in order to participate in
his defense, and he must be able to understand the nature or
object of the proceedings against him. The focus is properly on
the defendant’s mental capacity, i.e., whether he has the ability
to understand the proceedings.

Id. (internal citations omitted).

After reviewing the briefs of the parties and the certified record, we

conclude that the well-written opinion of the Honorable Maureen T. Beirne

denying Burrell’s post-sentence motions thoroughly and adequately

addresses this issue. See Trial Court Opinion, 3/30/16, at 2-6 (crediting the

testimony of the Commonwealth’s experts in psychology and psychiatry that

Burrell was malingering).

Next, Burrell asserts that the trial court erred in concluding that the

search warrant for files on his computer was overly broad and therefore

infringed on Constitutionally protected rights.

[An appellate court’s] 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

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J-S12010-17

[suppression] court’s legal conclusions are erroneous. Where …
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 [the] 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 [suppression
court are] subject to … plenary review.

Commonwealth v. Hoppert, 39 A.3d 358, 361-362 (Pa. Super. 2012)

(citations omitted). Furthermore,

[a] search warrant cannot be used as a general investigatory
tool to uncover evidence of a crime. Nor may a warrant be so
ambiguous as to allow the executing officers to pick and choose
among an individual’s possessions to find which items to seize,
which would result in the general “rummaging” banned by the
Fourth Amendment. Thus, Pa.R.Crim.P. 205 specifies the
necessary components of a valid search warrant. The comment
to Rule 205 provides, however, that even though general or
exploratory searches are not permitted, search warrants should
“be read in a common sense fashion and should not be
invalidated by hypertechnical interpretations. This may mean, for
instance, that when an exact description of a particular item is
not possible, a generic description will suffice.” Pa.R.Crim.P. 205
(cmt.). Embracing this approach, we have held that “where the
items to be seized are as precisely identified as the nature of the
activity permits ... the searching officer is only required to
describe the general class of the item he is seeking.”

A warrant is defective when its explanatory narrative does not
describe as clearly as possible those items for which there is
probable cause to search. In assessing the validity of a
description contained in a warrant, a court must initially
determine for what items there was probable cause to search.
“The sufficiency of the description [in the warrant] must then be
measured against those items for which there was probable
cause. Any unreasonable discrepancy between the items for
which there was probable cause [to search] and the description
in the warrant requires suppression.”

Commonwealth v. Rega, 933 A.2d 997, 1011-1012 (Pa. 2007) (citations

omitted)

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J-S12010-17

After reviewing the briefs of the parties and the certified record, we

conclude that the opinion of the Honorable Maureen T. Beirne denying

Burrell’s post-sentence motions thoroughly and adequately addresses this

issue. See Trial Court Opinion, 3/30/16, at 6-9 (concluding that the search

was sufficiently particularized given the scope of the charges involved).1

In his third issue, Burrell contends that the trial court erred in

permitting the Commonwealth to try him on the charges that had been nolle

prossed in 2003. He asserts that by doing so, the trial court violated the

doctrine of collateral estoppel and thus, his right against double jeopardy.

The doctrine of collateral estoppel is a part of the Fifth
Amendment’s guarantee against double jeopardy, which was
made applicable to the states through the Fourteenth
Amendment. The phrase “collateral estoppel,” also known as
“issue preclusion,” simply means that when an issue of law,
evidentiary fact, or ultimate fact has been determined to by a
valid and final judgment, that issue cannot be litigated again
between the same parties in any future lawsuit. Collateral
estoppel does not automatically bar a subsequent prosecution,
but rather, it bars redetermination in a second prosecution of
those issues necessarily determined between the parties in a
first proceeding that has become a final judgment.

Traditionally, Pennsylvania courts have applied the collateral
estoppel doctrine only if the following threshold requirements are
____________________________________________

1
The trial court states in its opinion that “the appellate courts of
Pennsylvania have not specifically ruled on the issue of search warrants for
computer files and the restrictions to be enforced to prevent overbroad
searches.” Trial Court Opinion at 8. It bears mention that this Court, in
Commonwealth v. Orie, 88 A.3d 983 (Pa. Super. 2014), addressed a claim
of overbroad search warrants for digital evidence, and noted that the law
concerning search and seizure of digital information remains under
development in Pennsylvania. See id., at 1009 n.43.

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J-S12010-17

met: 1) the issues in the two actions are sufficiently similar and
sufficiently material to justify invoking the doctrine; 2) the issue
was actually litigated in the first action; 3) a final judgment on
the specific issue in question was issued in the first action. An
issue is actually litigated when it is properly raised, submitted for
determination, and then actually determined. For collateral
estoppel purposes, a final judgment includes any prior
adjudication of an issue in another action that is sufficiently firm
to be accorded conclusive effect.

Commonwealth v. Holder, 805 A.2d 499, 502-503 (Pa. 2002) (citations

and footnote omitted).

Burrell argues that the Commonwealth’s decision to nolle prosse the

charges filed in 2002, combined with the length of time between the nolle

prosse and the current charges, acted as a final adjudication on the merits of

those charges. However, as the trial court aptly notes, this argument is

wrong as a matter of logic and of law. The Commonwealth’s decision to nolle

prosse charges does not implicate double jeopardy concerns, as the decision

to voluntarily end a prosecution is not the equivalent of a conviction or an

acquittal. See Commonwealth v. Ahern, 670 A.2d 133, 135 (Pa. 1996).

Furthermore, the Commonwealth’s decision to withdraw the charges prior to

trial in 2003, as a matter of logic, means that the issue was never submitted

for determination, let alone decided. Therefore, Burrell cannot establish

prongs 2 and 3 of the test for collateral estoppel, and the trial court correctly

rejected this argument.

Next, Burrell contends that the evidence at trial was insufficient to

support his convictions. Our standard of review for a challenge to the

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J-S12010-17

sufficiency of the evidence is to determine whether, when viewed in a light

most favorable to the verdict winner, the evidence at trial and all reasonable

inferences therefrom are sufficient for the trier of fact to find that each

element of the crimes charged is established beyond a reasonable doubt.

See Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003). “The

Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial

evidence.” Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007)

(citation omitted).

“[T]he facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence.” Id. (citation omitted). Any

doubt raised as to the accused’s guilt is to be resolved by the fact-finder.

See id. “As an appellate court, we do not assess credibility nor do we assign

weight to any of the testimony of record.” Commonwealth v. Kinney, 863

A.2d 581, 584 (Pa. Super. 2004) (citation omitted). Therefore, we will not

disturb the verdict “unless the evidence is so weak and inconclusive that as

a matter of law no probability of fact may be drawn from the combined

circumstances.” Bruce, 916 A.2d at 661 (citation omitted).

After reviewing the briefs of the parties and the certified record, we

conclude that the opinion of the Honorable Maureen T. Beirne denying

Burrell’s post-sentence motions thoroughly and adequately addresses this

issue. See Trial Court Opinion, 3/30/16, at 11-13 (concluding that the

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J-S12010-17

evidence supporting other sex crime charges was sufficient to establish the

charges of incest; that, among other evidence, the victim’s calendar was

sufficient to establish the number of incidents; and that Burrell’s argument

that there was no evidence corroborating the victim’s testimony was an

argument about weight, not sufficiency).

In his final argument, Burrell contends that the trial court abused its

discretion in imposing sentence. “A challenge to the discretionary aspects of

a sentence must be considered a petition for permission to appeal, as the

right to pursue such a claim is not absolute.” Commonwealth v. McAfee,

849 A.2d 270, 274 (Pa. Super. 2004) (citation omitted). “Two requirements

must be met before we will review this challenge on its merits.” Id. (citation

omitted).

“First, an appellant must set forth in his brief a concise statement of

the reasons relied upon for allowance of appeal with respect to the

discretionary aspects of a sentence.” Id. (citation omitted). “Second, the

appellant must show that there is a substantial question that the sentence

imposed is not appropriate under the Sentencing Code.” Id. (citation

omitted). That is, “the sentence violates either a specific provision of the

sentencing scheme set forth in the Sentencing Code or a particular

fundamental norm underlying the sentencing process.” Commonwealth v.

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (citation omitted).

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J-S12010-17

We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists. See id. “Our inquiry must focus on

the reasons for which the appeal is sought, in contrast to the facts

underlying the appeal, which are necessary only to decide the appeal on the

merits.” Id. (citation omitted); see also Pa.R.A.P. 2119(f).

In the present case, Burrell’s appellate brief contains the requisite Rule

2119(f) concise statement. In his statement, Burrell does not identify any

substantive argument against the sentence imposed. After setting forth the

standard by which we review such statements, Burrell provides the following

reasoning:

The Appellate Court should vacate the sentence and remand the
matter wherein further evaluations should be conducted for the
purpose of determining Donald C. Burrell’s competency to stand
criminal trial, or the Appellate Court should vacate the sentence
and retrial be directed wherein the evidence that was the subject
of the motion to suppress is precluded and the evidence of all
sexual related crimes from 1991 to 2003 are precluded, or the
Appellate Court should vacate the sentence due to a lack of legal
sufficiency of evidence, or the sentence should be modified.

Appellant’s Brief, at 7. Put simply, Burrell does not even attempt to raise a

substantial question regarding the discretionary aspects of his sentence.

Even if we were to review Burrell’s sentence pursuant to the issues he

raised in his post-sentence motions, we would afford no relief. After

reviewing the briefs of the parties and the certified record, we conclude that

the opinion of the Honorable Maureen T. Beirne denying Burrell’s post-

sentence motions comprehensively addresses this issue. See Trial Court

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J-S12010-17

Opinion, 3/30/16, at 13-14 (concluding that Burrell’s repeated, long-term

sexual abuse of his daughter constituted a “lifetime of torture,” and

therefore justified a life sentence).

As none of Burrell’s arguments on appeal merit relief, we affirm the

judgment of sentence.

Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/28/2017

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 Circulated 03/17/2017 03:27 PM

IN THE COURT OF COMMON PLEAS
BRADFORD COUNTY, PENNSYLVANIA

COMMONWEALTII OF PENNSYLVANIA

vs . : NO. CP-08-CR-0000178-2014

DONALD C. BURRELL
.. .

MEMORANDUM OPINION AND ORDER OF COURT

BEFORE: BEIRNE, M.T., P .J,

I. Procedural Background.

On June 25, 2015, Donald C. Burrell (hereinafter referred to as "the Defendant")

was found guilty by a jury of the following:

(1) Twenty(20) counts of'Rape, 18 Pa.C.S.A. §312l(a)(6),

(2) Ten,(10) counts of Rape, 18 Pa.C.S.A. §312l(a)(2),

(3) Twenty (20) counts· of Involuntary Deviate Sexual Intercourse, 18
Pa.C.S.A. §3123(a)(5),

(4) Twenty (20) counts of Involuntary Deviate Sexual Intercourse, 18
Pa.C.S.A. §3123(a)(7),

(5) Eight (8) counts of Sexual Abuse of Children, 18 Pa.C.S.A.
§6312(b),

(6) Eight (8) counts of Sexual Abuse of Children, 18 Pa.C.S.A.
§6312(d),

(7) Two hundred (200) counts of Incest, 18 Pa.C.S.A. §4302, and

(8) Multiple counts of the following: Statutory Rape, 18 Pa.C.S.A.
§3122; Involuntary Deviate Sexual Intercourse, 18 Pa.C.S.A.
§3123(a)(6); and Statutory Sexual Assault, 18 Pa.C.S.A. §3122.1.

1
 On November 9, 2015, the trial court sentenced the defendant on the above

convictions to be served consecutively. In its sentencing order, the court noted that the counts of

statutory rape, involuntary deviate sexual intercourse under 18 Pa.C.S.A. §31;23(a)(6), and

statutory·sexual assault, all merge with other offenses, and therefore, no sentence would be

imposed. As a result, the defendant was sentenced to an aggregate minimum sentence of 12,372

months and an aggregate maximum sentence of 30,552 months. Further, the defendant is not

eligible for Recidivism Risk Reduction Incentive (RRRI). Finally, the defendant was identified

by the trial court as a sexually violent predator under 42 Pa.C.S.A. §9799.24.

The defendant has filed multiple post-sentence motions with the trial court.

IT. lssue(s)Presented.

A. Whether the trial court erred. in not granting further evaluations to determine

Defendant's competency to stand criminal trial.

B. Whether the trial court erred in denying. the motion for suppression of evidence

regarding the files from the computer of Defendant.

C. Whether the trial court erred in allowing all sexual related crimes from 1991 to

2003 to come in at trial, allegedly against the doctrine of collateral estoppel.

D. Whether the trial court should vacate the sentence due to an alleged lack of legal

sufficiency of evidence.

E. Whether the trial court should modify the sentence.

III, Analysis.

A. Whether the trial court erred in not granting further evaluations to
determine Defendant's competencyto stand criminaltriaL

At the competency hearing, letters written by Defendant to the victim after he

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R3
was initially arrested and while incarcerated were submitted into evidence. The letters illustrated

Defendant's writing ability and comprehension of the instant matter, which are indicators of his

. intellectual and cognitive ability, and ultimately, competence to stand criminal trial. After

considering these letters and the expert testimony presented by both sides, by Order of April 13,

2014, the Court found that the defendant did not meet its burden of proof and the motion to find

incompetent was denied and dismissed. A Memorandum Opinion accompanied the Order setting

forth the reasons for the conclusion.
. .
In order to meet.the burden of'proof, Defendant's evaluating psychologist, Dr.

Michael H. Palmer, was called to testify. He opined· that Defendant suffered from severe

dementia, a condition that is not likely to improve, and he is, therefore, incompetent to stand

criminal trial. In reaching his diagnosis of severe dementia, Dr. Palmer.relied upon

psychological tests, including but not limited to, an IQ test, a neuro-cognitive test, and a

personality test, .as well as personal interview with Defendant and information about the

defendant received from the psychologist at the Bradford County, Pennsylvania, Correctional

Facility (BCCF).

Several issues came to light during Dr. Palmer's testimony that affected its

weight.. First, Dr. Palmer testified that he had not included a test specifically designed to detect

malingering on the part of the test-taker, and on rebuttal, agreed that the Commonwealth's tests

showed borderline malingering. In defense of his evaluation, Dr. Palmer stated that one ofhis

tests might suggest malingering depending upon a test-taker's score and that the Defendant's test

scores did not seem to him to be indicative of deception by the Defendant. Second, Dr. Palmer

testified that he had never seen the letters submitted into evidence, and that the writing ability

and comprehension evidenced by the letters was far better than what he had noted during his

3
 evaluation of Defendant. In order to explain this discrepancy, he stated that it is not uncommon

for persons with dementia to experience intervals oflucidity. Third, Dr. Palmer admitted that his

evaluation of the defendant did not include a review of the defendant's medical records or any

law enforcement records relating to the instant case.

The Commonwealth witness, Dr. Michael A. Church, opined that Dr. Palmer's

conclusion of incompetency was incorrect for the following reasons: (1) Dr. Palmer did not

make any significant attempt to determine whether Defendant was malingering; (2) Dr. Palmer

did not administer any test specifically designed to detect malingering; (3) Dr. Palmer neither

considered the available police records in evaluating the defendant nor sought to interview the

lead police investigator in the case; (4) Dr. Palmer failed to examine the defendant's medical

records in making his evaluation; and (5) Dr. Palmer failed to evaluate the content of the letters
sent by the defendant to the victim when re.aching his diagnosis. Dr. Church thentestified that

. he conducted a more thorough evaluation which included a test to detect malingering and

consideration of the police records, 'medical records, and letters, as well as theCf) of the victim's

forensic interview, reports and statementsmade by the lead police investigator,' and the report

prepared by Dr. Fischbein following his evaluation of the victim. Based on his evaluation, Dr.

Church testified that there were indications of malingering and that the defendant was competent

to stand criminal trial.

The Commonwealth also called Dr. Fischbein, a medical doctor specializing in

psychiatry, to testify. Dr. Fischbein expressed to the trial court his belief that Dr. Palmer's

· evaluation of the defendant was defective for ( 1) his not having tested the defendant for

malingering and (2) not exploring the collateral sources of information, i.e. failing to consider

the letters, medical reports, police reports, et cetera. Further, Dr. Fischbein testified that the

4

RS
indicia of mental dysfunction noted by Dr. Palmer during his-evaluation of the defendant was

contrived by the defendant, and that the defendant is competent to stand criminal trial.

In Pennsylvania, "[a] defendant is presumed to be competent to stand trial."

Commonweald?-v, Flor, 998 A.2d 606, 617 (Pa. 2010), citing Commonwealth v. Pruitt, 951 A.2d

307, 316 (Pa. 2008). At a competency hearing, the defendant has theburden of proving that he is ·

incompetent to undergo criminal trial by a preponderance of the evidence. Id. In order to prevail

at such a competency hearing, it must be shown by the defendant that he is unable. to understand

the nature of the proceedings against him or that he is not able to participate in his own defense.

Id. In other words, "[tjhe relevant question in a competency determination is whether the

defendant has sufficient ability at the pertinent time to consult with counsel with a. reasonable

degree of rational understanding, and to have a rational as well as a factual understanding of the

proceedings." Id ,
. •' I
'

Great deference is given to .the trial judge's determination as to competency:

because he or she had the opportunity to observe directly a defendant's behavior. Id. Therefore,

when the opinions of expert witnesses during a competency hearing conflict, it is a proper .

exercise of the trial court's discretion to accept one expert witness's opinion over that of the

conflicting opinion where the record adequately supports such a resolution. Id.

Inthis case, the trial court determined that the defendant failed to meet its burden

of showing that it is more likely than not that he was incompetent to stand criminal trial. In

making its determination, the testimony of Dr. Church and Dr. Fischbein was accepted over that

of Dr. Palmer, as is permitted under Commonwealth v. Flor, because of'the noted deficiencies in

Dr. Palmer's evaluation - the failure to specifically test for malingering and the failure to

consider collateral sources of information for the purposes of the evaluation.

5
RG
 The defendant argues that the trial court was obligated to order a long-term

evaluation in order to determine competency based on the recommendation of Dr. Palmer at the

competency hearing. In making this argument, the Defendant holds forth Cooper v. Oklahorrm,

517 U.S. 348 (1996), as obligating the trial court to leave "no stone unturned" especially because

of the complexity and volume of this case. However, such language cannotbe found in Cooper.

which merely discusses how a presumption of competency is constitutional but the burden of

proof on a defendant requiring clear and convincing evidence of incompetence is not.

For the foregoing reasons, the trial court did not err in determining the defendant

was competent to stand criminal trial:

B. Whether the trial court erred in denying the motion for suppresslcn
of evidenceregarding the files from the computer of Defendant.

During the investigation of the defendant, his Dell laptop computer was searched

.pursuantto a search warrant. The search warrant identified the items to be searched for and

seized as follows:

Instant [mjessages relating to the sexual abuse of Christina M. BURRELL,
and the illegal distribution of narcotics, video files, still image files,
documents and any other file relating to the sexual abuse of Christina M.
BURRELL. Video files, still image files and any other file depicting
[c]hild [p]omography, any docwnent or file relating to the ordering
(possibly online orders), delivery, financial accounting, financial
disbursement of funds relating to the trafficking of'narcotics,
predominately bath salts.1

Application/or Search Warrant and Authorization, Warrant Control Number MD-197-2013,

issued August 7, 2013.

The forensic computer expert searched the computer and exported the files he

thought were being requested by ·the Chief Investigator. While the computer expert testified that

1
The language In the search warrant pertaining to drugs was present because the Defendant was being
Investigated under separate charges related to drug trafficking. A separate trial has been set by the time of this
writing. ·
6
 he had to look at files which were not relevant to the case, there is no indication that files not

covered by the search warrant were actually exported.

The Defendant, in an omnibus pretrial motion, moved to suppress the evidence

seized from the computer arguing that the search warrant was defective for lacking specificity.

Subsequently, the trial court denied this motion in June of 2015. It appears no written Order

was issued and may have been an oral order.

The Defendant argues that the search warrant was so broad that it allowed the

Commonwealth to search private files that had nothing to do with the pending charges.

The Pennsylvania Constitution, Article I, Section 8, provides that all persons shall

be secure from unreasonable searches and seizures and that no warrant to search any place or

person shall be issued without probable cause. Moreover, it is a fundamental requirement that a

... , warrant shall only be issued uponprobablecause. Commonwealth v. Edmunds, 586 A.2d 887,
... ·. ·, . ,,

899 (Pa. 1991); Search warrants must specifically describe the property or tbings to .be seized,

, · · and cannot be used as a general investigatory tool. Commonwealth v. Bagley, 596 A.2d 811,

814 (Pa. Super. 1991). The Pennsylvania Supreme Court has concluded Article 1, Section 8 of

the Pennsylvania Constitution affords greater protection than the Fourth Amendment, including a

more demanding particularity requirement; the description must be as particular as reasonably

possible. ·commom~ealth v. Grossman. 521 Pa. 290, 555 A.2d 896, 899 (Pa. 1989). The place to

be searched must be described in a way "precise enough to enable the executing officer to

ascertain and identify, with reasonable effort, the place intended, and where probable cause

exists to support the search of the area. so designated, a warrant will not fail for lack of

particularity." In re Search Warrant B-21778, 341 Pa. Super. 350, 491 A.2d 851, 856 (Pa.Super,

, 1985), aff'd, 513 Pa. 429, 521 A.2d 422 (Pa. 1987).

7
 Courts have .held that, while items to be seized shall be set forth as precisely as

possible, an exact description may be impossible. Commonwealth v. Barba, 314 Pa. Super. 210,

460 A.2d 1103 (Pa.Super, 1983). Therefore, a generic description may suffice. Id. The warrant

in the within case stated the items sought.

Although the appellate courts of Pennsylvania have not specifically ruled on the

issue of search warrant_s for computer files and the restrictions to be enforced to prevent

overbroad searches, the Third Circuit in United States v. Stabile, 633 F.3d 219 (3d Cir. 2011)

appears to agree with the Tenth Circuit in United States v; Burgess. 576 F.3d 1078 (10th Cir.

2009). In Burgess, the warrant authorized a search for "computer records" and "items of

personal property which would tend to show conspiracy to sell drugs, including pay-owe sheets,

address books, rolodexes, pagers, firearms and monies," The court, in discussing the scope of

the search authorized by the warrant, stated the following:

[I]t is folly for a search warrant to attempt to structure the mechanics · of
the· search .and a warrant imposing such limits would unduly restrict
legitimate· search objectives. One would not ordinarily expect a warrant to
search filing cabinets for evidence of drug activity to prospectively restrict
the search to "file cabinets in the basement" or to file· folders labeled
"Meth Lab" or "Customers. And there is no reason to so limit computer
If

searches. But that is not to say methodology is irrelevant.

A warrant may permit only the search of particularly described places and
only particularly described things may be seized. As the description of
such places and things becomes more general, the method by which the
search is executed become more important -- the search method must be
tailored to meet allowed ends. And those limits must be functional. For
instance, unless specifically authorized by the warrant there would be little
reason for officers searching for evidence of drug trafficking to look at tax
returns (beyond verifying the folder labeled "2002 Tax Return" actually
contains tax returns and not drug files or trophy pictures).

Respect for legitimate rights. to privacy in papers and effects requires an
officer executing a search warrant to first look in the most obvious places
and as it becomes necessary to progressively move from the obvious to the
obscure. That is the purpose of a search protocol which structures the

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 search by requiring an analysis of the file structure, next looking for
suspicious file folders, then looking for files and types of files most likely
to contain the objects of the search by doing keyword searches. But in the
end, there may be no practical substitute for actually looking in many
(perhaps all) folders and sometimes at the documents contained within
those folders, and that is true whether the search is of computer files or
physical files. It is particularly true with image files.

Burgess, 576 F .3d at 1094 After a discussion on the search methodologies used to conduct the

search, the court in Burgess ruled that no violation of the Fourth Amendment of the United

States Constitution took place.

In this case, the affidavit of probable cause gives the foundation for the search to

be conducted, and has not been called into question by the defendant. Moreover, the search

warrant itself :'Has particularized as much as possible to only search for computer files pertaining

to the sexual abuse of Christina Burrell, child pornography,' and drug trafficking. Further, there

is no evidence that any other type. of information was actually exported 'from the defendant's

computer, As noted in Burgess, it would be folly to try to structure the mechanics of a search in': ',

.· a search warrant. Rather, such an analysis ·should be -done by analyzing the methodology · · ·

actually performed by the investigator performing the.search - something which was not done in'

this case.

In conclusion, because the search warrant was supported by probable cause, listed

the information on the computer to be seized with particularity, and the absence of any evidence

implicating any impropriety in methodology or seizure of evidence not particularized in the

search warrant, the trial court did not err in denying the defendant's motion to suppress the

computer evidence.

C. Whether the trial court erred in allowing all sexual related
crimes from 1991 to 2003 to come in at trial, allegedly against
the doctrine of collateral estoppel.

9
R \0
 In Commonwealth v. Holder. 805 A.2d 499 (Pa. 2002), the Supreme Court of

Pennsylvania summed up the doctrine of collateral estoppel as it applies in Pennsylvania as

follows:

The doctrine of collateral estoppel is a part of the Fifth Amendment's
guarantee against double jeopardy, which was made applicable to the
states through the Fourteenth Amendment. The phrase "collateral
estoppel," also known as "issue preclusion." simply means that when an
issue of law, evidentiary fact, or ultimate fact has been determined by a
valid and final judgment, that issue cannot be litigated again between the
same parties in any future lawsuit. Collateral estoppel does not
automatically bar a subsequent prosecution, but rather, it bars
redetermination in a second prosecution of those issues necessarily
determined between the parties in a first proceeding that has become a
final judgment.

Traditionally,· Pennsylvania courts have applied the collateral estoppel
doctrine only if thefollowing threshold requirements are met: 1) the issues
in the two actions are 'sufficiently similar and sufficiently material to
justify invoking the doctrine; 2) the issue was actually litigated in the first
· action; and 3) a final judgment on the specific issue in question was issued
. ; , in the first action .. Anissue is actually litigated when if is properly raised, .
.submitted fordetermination, and then actually determined. For collateral
estoppel purposes, a final .judgment includes any prior adjudication of an
issue in another .action that is sufficiently firm to.be accorded conclusive
effect.

Commonwealth v. Holder, 805 A.2d 499, 502-503 (Pa. 2002) (citations omitted).

The Defendant argues for applying the doctrine of collateral estoppel because the

crimes of the defendant from 1991 to 2003 were initially prosecuted, but then withdrawn

pursuant to a nolle prosequi, because of the then recantation of the victim. Under Defendant's

theory, the filing and granting of the nolle prosequi coupled with the length of time between the

previous and current proceedings subjects this case to issue preclusion.

However, under the doctrine of collateral estoppel, there must exist a final

judgment on the specific issue in question. In this case, the charges were dropped without any

final judgment being rendered. Without a final judgment on the issue that was litigated - in this

10
 case, whether the defendant was actually guilty of the crimes from 1991 to 2003 -the doctr:ine of

collateral estoppel is unavailable to the defendant to prevent later litigation.

As to the defendant's attempt to tie the dismissal of charges pursuant to a nolle

prosequi to the concept of double jeopardy, the Supreme Court of Pennsylvania has noted that

"since a nolle prosequi acts neither as an acquittal nor a conviction, double jeopardy does not

attach to the original criminal bill or information." Commonwealth v. Ahearn, 670 A.2d 133,

135 (Pa. 1996). Therefore, Defendant's attempt to connect nolle prosequi and double jeopardy

must fail as a matter of law.

D. Whether the trial. court should vacate the sentence due to an
alleged lack of legal sufficiency of evidence,

A claim challenging the sufficiency of the evidence is a question of law.

Commonwealth v. Widmer, 744 A.2d.745,. 7$i (Pa. 2000). Evidence is 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," .Id. at 751,· citing Commonwealth v .

. · Karkaria, 625 A.2d 1167 (Pa. 1993). "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." Id., citing Commonwealth

v. Chambers, 599 A.2d 630 (Pa. 1991).

In this case, Defendant makes several arguments alleging lack of legal

sufficiency of evidence. First, the defendant argues that all of the charges of incest must be

based in a separate charge of some sexual crime. In other words, the 200 charges of incest ·

cannot be sustained by the 146 other charges involving sex which underlie the form.er. Second,

the Defendant argues that the victim never testified to 346 individual instances where she had

sexual contact with the defendant. In support of this contention, the defendant argues that the

11
only proof offered by the Commonwealth is the victim's testimony and photographs of the

victim in seductive poses. Third, the defendant argues that no one testified to corroborate the

victim's testimony, and there was no DNA taken from the sex tools shown to the jury.

In response to the defendant's first argument, the charges for incest do not need

to match the charges of other sexual crimes. Under 18 Pa.C.S. § 4302, a person is guilty of

incest if he "knowingly marries or cohabits or has sexual intercourse with an ancestor or

descendant, a brother or sister of the whole or half blood or an uncle, aunt, nephew or niece of

the whole blood." This statute does not mandate a sexual crime other than incest, but rather,

only requires marriage, cohabitation, or sexual intercourse in conjunction with relation of the

parties. The other crimes of which the defendant has been charged have different elements than

incest and do not merge in the way
.
that the defendant
.
seems to be suggesting.
.·:· ,,

As.to the defendant's argument that the Commonwealth wasrequired to pre~ent
.: ..
evidence of each individual instance of each crime, the evidence viewed in the light most

. favorable to the verdict winner, the Commonwealth, is sufficient to support each of the
' .
convictions. At trial, calendars were entered into evidence which tracked the individual

instances of vaginal sexual intercourse which occurred between the defendant and the victim.

The victim testified that each sequentially larger number marked in the calendar signified
. .
another instance in which the defendant engaged in vaginal sexual intercourse with the vlctim.

These numbers reached a count of over 200, almost reaching 300 in total. · The Commonwealth

offered electronic communications sent by the defendant as referencing these numbers in order

to corroborate the victim's testimony as to the meaning of the calendars. When viewed in the

light most favorable to the Commonwealth, this evidence is sufficient to support the verdict for

each individual conviction.

12
 Finally, the defendant's claim that the victim's testimony was not corroborated

by the testimony of another or DNA evidence is irrelevant. While such testimony and evidence

would strengthen a case, neither is a necessary element in proving. a case beyond a reasonable

doubt.

E. Whether the trial court should modify the sentence.

The Supreme Court of Pennsylvania has stated that "a trial court has broad

discretion in sentencing a defendant, and concomitantly, the appellate courts utilize a deferential

standard of appellate review in determining whether the trial court abused its discretion in

fashioning an appropriate sentence." Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014),

citing Commonwealth-v. Perrv, 32 A.3d 232 (Pa. 2011), and Commonwealth v. Walls, 92q A.2d

957 (Pa. 2007). The .Supreme-Court applies the following standard for the review of the merits

. of a challenge to the trial court's sentencing discretion:

. : Our Court has stated that the proper standard .of review when considering
. whether .to affirm the sentencing court's determination is an abuse· of
· discretion. [A]n abuse of discretion is more than a mere error of judgment;
thus, a sentencing court will not have abused its discretion unless the
record discloses that the judgment exercised was manifestly unreasonable,
or the result of partiality, prejudice, bias or ill-will. In more expansive
terms, our Court recently offered: An abuse of discretion may not be
found merely because an appellate court might have reached a different
conclusion, but requires a result of manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support so as to be
clearly erroneous.

The rationale behind such broad discretion and the concomitantly
deferential standard of appellate review is that the sentencing court is in
the best position to determine the proper penalty for a particular offense
based upon an evaluation of the individual circumstances before it Simply
stated, the sentencing court sentences flesh-and-blood defendants and the
nuances of sentencing decisions are difficult to gauge from the cold
transcript used upon appellate review. Moreover, the sentencing court
enjoys an institutional advantage to appellate review, bringing to its
decisions an. expertise, experience, and judgment that should not be lightly

13
 disturbed Even with the advent of the sentencing guidelines, the power of
sentencing is a function to be performed by the sentencing court,

Commonwealth v. Walls,.926 A.2d 957, 961-62 (Pa. 2007) (citations omitted).

Further, the law of Pennsylvania allows the effective imposition of a life sentence

through the imposition of consecutive sentences because the imposition of consecutive rather

than concurrent sentences rests within the trial court's discretion. Commonwealth v. Harvard, 64

A.3d 690, 703 (Pa .. Super. 2013) citing Commonweaith v. Ahmad, 961 A.2d 884 (Pa. Super.

2008).

In the present case, Defendant was sentenced pursuant to both the sentencing

guidelines and the discretion of the trial court The discretion of the court was founded upon the

evidence presented at trial - evidence including but not limited to the repeated sexual abuse of a

. _ . . . · . daughter by her father by.forcing her ·to perform oral sex at the age of seven, anal sex. by the age

. .: · · , .: , . of eight, and.vaginal.sex by. the· age.of'thirteen, and continuing through adulthood.fhe : , , . · ·. · . .

, . "agreements" signed by the daughter giving the father ''rights" over her breasts, hair,' money, and ,

' . self, and the demeanor.of the parties involved which cannot be conveyed through acold reading

of the transcript. It was a lifetime of torture. Further, there is no evidence in the sentence of

manifest unreasonableness, cir partiality, prejudice, bias, or ill-will, or such lack of support so as

to make it clearly erroneous. Therefore, the Motion to Modify Sentence is denied.

IV. Conclusion.

For the foregoing reasons, the trial court did not err in its determinations at trial

and sentencing, and the Defendant's post-sentencing motions are hereby denied.

ORDER OF COURT

AND NOW, this so" day of'March, 2016, Defendant's Post-Sentence Motion.is
deemed denied by operation of law as one hundred twenty (120) days have expired since the

. 14
filing of said motion. However, said motions would have been denied in accordance with the

accompanying Memorandum Opinion.

BY THE COURT:

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