Opinion
J-S83037-17 No. 322 EDA 2017
03-02-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. HERBERT EARL BROWN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence August 11, 2016
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0006607-2015 BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Herbert Earl Brown, appeals from the judgment of sentence entered in the Bucks County Court of Common Pleas, following his jury trial convictions of twenty-four counts of possession of child pornography and one count of criminal use of communication facility, and bench trial conviction of failure to comply with registration requirements. We affirm the judgment of sentence in part, vacate the court's imposition of sexually violent predator ("SVP") status, and remand with instructions.
18 Pa.C.S.A. §§ 6312(d), 7512(a), and 4915.1(a)(3), respectively.
In its opinion, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them. For purposes of disposition, we add the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) on January 18, 2017, and Appellant timely complained on January 20, 2017.
Appellant raises the following issues for our review:
WHETHER THE TRIAL COURT ERRED BY DENYING [APPELLANT'S] MOTION TO SUPPRESS THE JULY 13, 2015 SEARCH WARRANT OF THE GALAXY PHONE, WHERE THE INFORMATION FROM THE ANONYMOUS TIP CONTAINED WITHIN THE WARRANT FAILED TO ESTABLISH PROBABLE CAUSE FOR [APPELLANT'S] PHONE TO BE SEIZED AND SEARCHED; WAS BASED ON INSUFFICIENT, ANONYMOUS, UNCORROBORATED, AND/OR UNRELIABLE INFORMATION AND SOURCES TO ESTABLISH PROBABLE CAUSE; AND CONTAINED INSUFFICIENT RELIABILITY OF THE ANONYMOUS TIP TO ESTABLISH PROBABLE CAUSE ON THE FACE OF THE WARRANT[?]
WHETHER THE TRIAL COURT ERRED BY DENYING [APPELLANT'S] MOTION TO SUPPRESS THE SEARCH WARRANT OF THE GALAXY PHONE, WHERE THE WARRANT CONTAINED INCORRECT AND WRONG IDENTIFYING INFORMATION REGARDING THE GALAXY PHONE (S4 VS S3), THE WARRANT WAS DEFECTIVE AND OVER BROAD, THE WRONG PHONE WAS SEIZED AND SEARCHED, AND THE WARRANT FAILED TO IDENTIFY THE CORRECT CELL PHONE OF [APPELLANT] BY THE CORRECT SIM CARD AND STORAGE DEVICE[?]
WHETHER DETECTIVE MATTHEW MOLCHAN OF THE QUAKERTOWN BOROUGH POLICE DEPARTMENT EXCEEDED THE SCOPE OF THE JULY 15, 2015 AND AUGUST 31, 2015 WARRANTS BY ACCESSING AND EXTRACTING THE MEDIA FILES AFTER SEIZING THE PHONES, AND WITHOUT OBTAINING A NEW SEARCH WARRANT TO ACCESS OR EXTRACT THE MEDIA FILES, AS UNDER COMMONWEALTH V. STEM , 96 A.3D 407 (PA.SUPER. 2014) AND RILEY V. CALIFORNIA , [___ U.S. ___, 134 S.CT. 2473, 189 L.ED.2D 430 (2014)?]
WHETHER THE EVIDENCE WAS SUFFICIENT TO ESTABLISH THAT THE STORAGE DEVICE CONTAINING CHILD PORNOGRAPHY ON THE PHONES SEARCHED AND SEIZED PURSUANT TO THE SEARCH WARRANTS BELONGED TO AND/OR WERE USED BY [APPELLANT], CONTAINED IMAGES DOWNLOADED BY [APPELLANT], AND THE IMAGES OR PHONES WERE IN POSSESSION OF [APPELLANT?]
WHETHER THE TRIAL COURT ERRED IN APPLICATION AND IMPOSITION OF THE LIFETIME MANDATORY SENTENCING PROVISION UNDER 42 [PA.C.S.A. §] 9718.2(A)(2), WHERE [APPELLANT] WAS SENTENCED TO [TWENTY-FOUR] (24) LIFE SENTENCES, INCLUDING THREE (3) CONSECUTIVE LIFE SENTENCES, AND WHERE:
A) THE SENTENCING SCHEME UNDER 42 [PA.C.S.A. §] 9718.2(A)(2) INDICATES A SINGLE TRANSACTION OR OCCURRENCE AS PRIOR OFFENSES IMPLICATING THE MANDATORY, AND REQUIRES ONLY THE IMPOSITION OF ONE MANDATORY SENTENCE;
B) IMPOSITION OF THE LIFETIME MANDATORY UNDER 42 [PA.C.S.A. §] 9718.2(A)(2) VIOLATES THE CRUEL AND UNUSUAL PUNISHMENT PROVISIONS OF THE PENNSYLVANIA CONSTITUTION AND THE 8TH AMENDMENT OF THE UNITED STATES CONSTITUTION[;]
C) IMPOSITION OF THE LIFETIME MANDATORY UNDER 42 [PA.C.S.A. §] 9718.2(A)(2) VIOLATES THE PENNSYLVANIA AND UNITED STATES CONSTITUTIONS AS A DISPROPORTIONAL SENTENCE COMPARED TO THE CHILD PORNOGRAPHY OFFENSES CONVICTED[;]
D) IMPOSITION OF THE LIFETIME MANDATORY UNDER 42 [PA.C.S.A. §] 9718.2(A)(2) VIOLATES THE PENNSYLVANIA AND UNITED STATES CONSTITUTIONS AS IT REQUIRES PROOF BEYOND A REASONABLE DOUBT OF AN ELEMENT OF PRIOR CONVICTIONS WHICH CAN ONLY BE DETERMINED BY A JURY. SPECIFICALLY, 42 [PA.C.S.A. §
(Appellant's Brief at 5-6).9718.2(C)] VIOLATES ALLEYNE V. UNITED STATES , [570 U.S. 99, 133 S.CT. 2151, 186 L.ED.2D 314 (2013)][;]
E) IMPOSITION OF THE LIFETIME MANDATORY UNDER 42 [PA.C.S.A. §] 9718.2(A)(2) VIOLATES THE PENNSYLVANIA AND UNITED STATES CONSTITUTIONS AS THE PRIOR CONVICTIONS RELIED UPON ARE TOO REMOTE IN TIME TO BE A FACTOR IN IMPOSING THE MANDATORY[;]
F) THE NOTICE REQUIREMENT OF THE LIFETIME MANDATORY SENTENCE IS UNCONSTITUTIONAL, VAGUE, AND FAILS TO PROVIDE THE PETITIONER SUFFICIENT DUE PROCESS AS REQUIRED BY LAW[.]
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasonable opinion of the Honorable Wallace H. Bateman, Jr., we conclude Appellant's issues on appeal merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. ( See Trial Court Opinion, filed March 29, 2017, at 11-27) (finding: (1-3) facts contained in affidavit of probable cause were based on information obtained from person known to Appellant, who did not have any convictions for crimen falsi and had firsthand knowledge of Appellant's possession of child pornography; reliability of information is bolstered by fact that informant was able to provide Appellant's accurate address, phone number, and cellular provider; further, results of Detective Molchan's investigation corroborated facts contained in affidavit of probable cause; under these circumstances, information contained in affidavit of probable cause was sufficient, reliable, and corroborated; additionally, description of phone was sufficiently particular because affidavit of probable cause identified exact phone number and brand of phone sought by police; fact that police seized Galaxy S3 instead of Galaxy S4 named in affidavit of probable cause is of no consequence because Commonwealth established that variation between models was minimal; Detective Molchan also called phone number listed in affidavit of probable cause during execution of warrant to ensure seizure of correct cellphone; as such, any defect in affidavit of probable cause was immaterial; Detective Molchan's inclusion of incorrect cellphone model was not deliberate inclusion meant to mislead anyone; even if Detective Molchan had omitted model of cellphone from affidavit of probable cause, sufficient probable cause still existed to support seizure of Appellant's cellphone; finally, Detective Molchan did not exceed scope of search warrants because record demonstrates he seized and searched only items described in warrants; further, Appellant relies on inapplicable case law to support his claim that Detective Molchan exceeded scope of search warrants; therefore, court properly denied Appellant's suppression motion; (4) Appellant admitted to police that his cellphone contained images of underage children and he knew possession of such images at issue was illegal; cellular pings confirmed Appellant's use of cellphone during time period when over forty searches for child pornography occurred on phone; Appellant's claim that he downloaded images from nudist organization's website does not absolve Appellant of liability for possession of child pornography; Appellant verified with police that cellphone seized belonged to him; thus, sufficient evidence existed for jury to convict Appellant of possession of child pornography; (5) Appellant has entered nolo contendere pleas in four prior cases involving sexual offenses, one in Michigan and three in Pennsylvania; Michigan case constituted Appellant's first strike and Pennsylvania cases constituted Appellant's second strike pursuant to Section 9718.2(a)(2); each of Appellant's current convictions constitute third strike; contrary to Appellant's assertion, language of Section 9718.2(a)(2) requires court to impose mandatory life sentences for each of Appellant's convictions because each image of child pornography is separate offense; as such, court properly imposed twenty-four life sentences; with respect to Appellant's claim that Section 9718.2(a)(2) constitutes cruel and unusual punishment, Pennsylvania courts have repeatedly rejected claims that challenge constitutionality of habitual offender statutes; to extent Appellant claims twenty-four life sentences is disproportionate to crime committed, this claim fails because court has no discretion under Section 9718.2(a)(2); additionally, Pennsylvania courts have stated disproportionality claims have no merit when court sentences defendant under habitual offender statute; with respect to Appellant's claim that imposition of mandatory life sentences violated Alleyne , this claim fails because his prior convictions are legally recognized conclusions which do not require additional fact finding; Appellant's Alleyne argument fails to appreciate that he was found guilty of prior offenses beyond reasonable doubt; additionally, Appellant would be highly prejudiced if Commonwealth was required to present evidence of prior convictions to jury; to extent Appellant argues his prior convictions are too remote in time, Section 9718.2(a)(2) does not cap age of prior convictions eligible for consideration as prior strikes under habitual offender statute; with respect to Appellant's challenge to notice he received of Commonwealth's intent to seek mandatory minimum under Section 9718.2(a)(2), this claim fails because Commonwealth provided Appellant notice of intent to seek mandatory minimum prior to time required by statute; additionally, notice requirements contained in Section 9718.2(c) are constitutional and demonstrate legislature's intent to satisfy defendant's due process rights; under these circumstances, court properly imposed twenty-four (24) mandatory minimum sentences pursuant to Section 9718.2(a)(2), and Appellant's various challenges to his sentence fail). The record supports the court's sound reasoning.
In the trial court, Appellant solely claimed the court should suppress the evidence seized by police because Detective Molchan seized a Galaxy S3 instead of a Galaxy S4. Significantly, Appellant did not raise his claims that: (1) the anonymous tip was unreliable; (2) the police failed to corroborate the information in the affidavit of probable cause; (3) the search warrant was overbroad; or (4) the police exceeded the scope of the warrants by failing to obtain additional warrants to extract information from the devices seized. Thus, these claims are arguably waived on appeal. See Pa.R.A.P. 302(a) (stating: "issues not raised in the [trial] court are waived and cannot be raised for the first time on appeal").
Appellant abandons the challenge to his sentence based on the remoteness of his prior convictions in his appellate brief.
Finally, we observe the recent PA Supreme Court decision that held the registration requirements under SORNA constitute criminal punishment. Commonwealth v. Muniz , 164 A.3d 1189 (Pa. 2017). In light of Muniz , this Court subsequently held: "[U]nder Apprendi and Alleyne , a factual finding, such as whether a defendant has a mental abnormality or personality disorder that makes him...likely to engage in predatory sexually violent offenses, that increases the length of registration must be found beyond a reasonable doubt by the chosen fact-finder." Commonwealth v. Butler , 173 A.3d 1212, 1217 (Pa.Super. 2017) (internal quotations and citations omitted). The Butler Court also held: "Section 9799.24(e)(3) of SORNA violates the federal and state constitutions because it increases the criminal penalty to which a defendant is exposed without the chosen fact-finder making the necessary factual findings beyond a reasonable doubt." Id. at 1218. The Butler Court concluded that trial courts can no longer designate convicted defendants as SVPs or hold SVP hearings, "until [the] General Assembly enacts a constitutional designation mechanism." Id.
Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). --------
Instantly, the court imposed SVP status on Appellant on 8/11/16. Appellant filed a post-sentence motion on 8/19/16, which the court denied by operation of law on 1/4/17. Appellant timely filed a notice of appeal on 1/13/17. While Appellant's appeal was pending, our Supreme Court decided Muniz on July 19, 2017, that held the registration requirements under SORNA constitute criminal punishment; and this Court decided Butler on 10/31/17, which deemed unconstitutional the current mechanism for imposition of SVP status, as used in the present case, and stated trial courts cannot impose SVP status in that manner. See Muniz , supra ; Butler , supra. In light of Muniz and Butler , Appellant's SVP status constitutes an illegal sentence, which we can review sua sponte. See Commonwealth v . Randal , 837 A.2d 1211, 1214 (Pa.Super. 2003) (en banc) (restating general rule that we can review illegal sentence sua sponte). Therefore, we vacate Appellant's SVP status and remand the case to the trial court to issue a revised notice to Appellant pursuant to 42 Pa.C.S.A. § 9799.23 (governing reporting requirements for sex offenders). Accordingly, we affirm the judgment of sentence in part but vacate the court's imposition of SVP status and remand with instructions.
Judgment of sentence affirmed in part; SVP designation vacated; case remanded with instructions. Jurisdiction is relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/2/18
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