Com. v. Birdsell, C. ( 2017 )

J-A17045-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER WILLIAM BIRDSELL,
Appellant No. 2789 EDA 2016
Appeal from the Judgment of Sentence August 1, 2016
in the Court of Common Pleas of Chester County
Criminal Division at No.: CP-15-CR-0000799-2015
BEFORE: GANTMAN, P.J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 20, 2017
Appellant, Christopher William Birdsell, appeals from the judgment of
sentence imposed following his bench conviction of one hundred and one
counts of sexual abuse of children—possession of child pornography, and
two counts of criminal use of a communication facility.1 We affirm.
We take the relevant facts and procedural history of this case from our
independent review of the certified record. On September 15, 2014,
Pennsylvania State Police Trooper John Sours obtained a search warrant
from the magisterial district judge to search a computer owned by Appellant.
The application for the search warrant contained a six-page affidavit of
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 6312(d) and 7512(a), respectively.
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probable cause, reflecting that in August of 2014, Detective Kenneth Bellis of
the Delaware County Criminal Investigation Division, a law enforcement
officer with twenty-three years’ experience, was conducting undercover
investigations into the internet sharing of child pornography. Detective
Bellis focused his investigation on peer-to-peer file sharing networks, which
Trooper Sours averred are used frequently in the trading of child
pornography. (See Affidavit of Probable Cause, 9/15/14, at 6).2
During the course of this investigation, Detective Bellis located a
computer that was sharing child pornography on file sharing network called
BitTorrent, and he was able to download more than one hundred digital files
from the user. Trooper Sours described that downloaded file in the affidavit
of probable cause as follows: “This color image depicts a white female
approx. 12-14 years of age. She is shown fully nude standing in water,
facing the camera. He[r] breast and genital areas as clearly depicted in
violation of [18 Pa.C.S.A. § 6312] Sexual Abuse of Children.” (Affidavit of
Probable Cause, 9/15/14, at 7).3 The IP address assigned to the computer
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2
Trooper Sours explained that peer-to-peer networks are composed of
participants that make a portion of their files available directly to their peers
without intermediary network hosts or servers. (See id.).
3
Section 6312 provides in relevant part as follows: “(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.A. § 6312(d). The definition of
(Footnote Continued Next Page)
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sharing the file was assigned to Comcast Cable Communication Inc. That
company responded to a court order for subscriber information relating to
the IP address with information identifying Appellant and his home address.
In advance of trial, Appellant sought suppression of the evidence found
on his computer. The trial court denied the suppression motion on October
20, 2015, following a hearing. Appellant proceeded to a bench trial, and the
court found him guilty of the above-referenced offenses. On August 1,
2016, the court sentenced Appellant to an aggregate term of not less than
thirty days nor more than twenty-three months’ incarceration, followed by
five years of probation. This timely appeal followed.4
Appellant raises one issue for our review: “Did the learned court err
by denying Appellant’s motion to suppress the contents of Appellant’s
personal computer?” (Appellant’s Brief, at 3) (unnecessary capitalization
omitted). We begin by noting our standard and scope of review:
The standard and scope of review for a challenge to the denial of
a suppression motion is whether the factual findings are
supported by the record and whether the legal conclusions
drawn from those facts are correct. When reviewing the rulings
of a suppression court, [the appellate court] considers only the
evidence of the prosecution and so much of the evidence for the
_______________________
(Footnote Continued)
“prohibited sexual act” includes “lewd exhibition of the genitals or nudity if
such nudity is depicted for the purpose of sexual stimulation or gratification
of any person who might view such depiction.” 18 Pa.C.S.A. § 6312(g).
4
Appellant filed a timely, court-ordered concise statement of errors
complained of on appeal on September 12, 2016. The trial court entered an
opinion on December 9, 2016. See Pa.R.A.P. 1925.
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defense as remains uncontradicted when read in the context of
the record as a whole. When the record supports the findings of
the suppression court, [the court is] bound by those facts and
may reverse only if the legal conclusions drawn therefrom are in
error.
Commonwealth v. Dougalewicz, 113 A.3d 817, 823 (Pa. Super. 2015),
appeal granted in part, 123 A.3d 1063 (Pa. 2015), and appeal dismissed as
improvidently granted, 157 A.3d 883 (Pa. 2017) (citation omitted).
In his sole issue on appeal, Appellant claims that the trial court erred
in failing to suppress the evidence seized from his personal computer
pursuant to the search warrant. (See Appellant’s Brief, at 8-24). Appellant
challenges the court’s finding of probable cause, arguing that the affidavit of
probable cause was defective because it failed to set forth sufficient
information indicating that evidence of a crime would be found on his
computer. (See id.; see also Rule 1925(b) Statement, 9/12/16). He
argues that “it is not a violation of law to have nude photographs of minors
on one’s computer[,]” and that there is no indication in the affidavit that the
single photograph described “was lewd or lascivious . . . or that the nudity . .
. served the purpose of sexual gratification or stimulation of a viewer.”
(Appellant’s Brief, at 15, 17). This issue does not merit relief.
In general, the Fourth Amendment of the United States
Constitution, and Article I, Section 8 of the Pennsylvania
Constitution, do not permit police to search for or seize property
absent a lawfully obtained search warrant. [F]or a search to be
reasonable under the Fourth Amendment or Article I, Section 8,
police must obtain a warrant, supported by probable cause and
issued by an independent judicial officer, prior to conducting the
search.
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Dougalewicz, supra at 824 (case citations and quotation marks omitted).
Probable cause exists where the facts and circumstances
within the affiant’s knowledge and of which he has reasonably
trustworthy information are sufficient in themselves to warrant a
man of reasonable caution in the belief that a search should be
conducted.
In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76
L.Ed.2d 527 (1983), the United States Supreme Court
established the totality of the circumstances test for determining
whether a request for a search warrant under the Fourth
Amendment is supported by probable cause. In
Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1986),
[the Pennsylvania Supreme] Court adopted the totality of the
circumstances test for purposes of making and reviewing
probable cause determinations under Article I, Section 8. In
describing this test, [our Supreme Court] stated:
Pursuant to the “totality of the circumstances”
test set forth by the United States Supreme Court in
Gates, the task of an issuing authority is simply to
make a practical, common-sense decision whether,
given all of the circumstances set forth in the
affidavit before him, including the veracity and basis
of knowledge of persons supplying hearsay
information, there is a fair probability that
contraband or evidence of a crime will be found in a
particular place. . . . It is the duty of a court
reviewing an issuing authority’s probable cause
determination to ensure that the magistrate had a
substantial basis for concluding that probable cause
existed. In so doing, the reviewing court must
accord deference to the issuing authority’s probable
cause determination, and must view the information
offered to establish probable cause in a common-
sense, non-technical manner.
* * *
Further, a reviewing court is not to conduct a
de novo review of the issuing authority’s probable
cause determination, but is simply to determine
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whether or not there is substantial evidence in the
record supporting the decision to issue the warrant.
As our United States Supreme Court stated: “A grudging or
negative attitude by reviewing courts towards warrants . . . is
inconsistent with the Fourth Amendment’s strong preference for
searches conducted pursuant to a warrant; courts should not
invalidate warrants by interpreting affidavits in a hypertechnical,
rather than a commonsense, manner.” Gates, supra at 236,
103 S.Ct. 2317 (citation and quotation marks omitted); see also
United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 82
L.Ed.2d 677 (1984) (“Reasonable minds frequently may differ on
the question whether a particular affidavit establishes probable
cause, and we have thus concluded that the preference for
warrants is most appropriately effectuated by according ‘great
deference’ to a magistrate’s determination.”).
Commonwealth v. Hoppert, 39 A.3d 358, 362–63 (Pa. Super. 2012),
appeal denied, 57 A.3d 68 (Pa. 2012) (one case citation omitted).
Here, the trial court found that the magisterial district judge’s decision
to issue the warrant was supported by ample probable cause. (See N.T.
Suppression Hearing, 10/20/15, at 28; Trial Court Opinion, 12/09/16, at 9).
Upon review, we agree.
Specifically, the record reflects that Trooper Sours submitted a lengthy
affidavit of probable cause outlining his and Detective Bellis’ extensive
experience and training relative to investigating child pornography crimes in
which computers are used. (See Affidavit of Probable Case, 9/15/14, at 3-
5). During Detective Bellis’ investigation into the internet sharing of child
pornography, on a peer-to-peer file sharing network frequently used to trade
such pornography, he was able to download more than one hundred digital
files of a fully nude female minor from a user, with the image clearly
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showing her breasts and genitals, which he believed depicted child
pornography. (See id. at 6-7). Authorities then traced the IP address
assigned to the computer sharing the file directly to Appellant. (See id. at
7).
Under the totality of the circumstances test, viewing the information in
a common sense, non-technical manner and affording appropriate deference
to the issuing authority, we conclude that the decision to issue the warrant
was supported by probable cause. See Hoppert, supra at 362–63.
Therefore, the trial court properly denied Appellant’s suppression motion,
and his issue on appeal merits no relief. Accordingly, we affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/20/2017
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