J-E01008-16


                                   2016 PA Super 84

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

KENNETH F. SODOMSKY

                                                      No. 870 MDA 2014


                      Appeal from the Order April 25, 2014
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0001025-2005


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, J., SHOGAN, J.,
        LAZARUS, J., MUNDY, J., OLSON, J., OTT, J., and STABILE, J.

OPINION BY OTT, J.:                                   FILED APRIL 12, 2016

       The Commonwealth appeals the order1 entered April 25, 2014, in the

Berks County Court of Common Pleas, granting the petition of Kenneth F.

Sodomsky to re-open his suppression hearing for the second time, and

suppressing evidence recovered from his computer.            On appeal, the

Commonwealth argues the trial court erred in (1) re-opening the hearing

after two prior suppression orders were reversed by this Court on appeal,

and (2) suppressing the evidence recovered from Sodomsky’s computer.

Because we find the trial court abused its discretion in re-opening the

____________________________________________


1
  The Commonwealth properly certified, in its notice of appeal, that “the
ruling terminated or substantially handicaps the prosecution of this case,” a
prerequisite to this Court’s jurisdiction pursuant to Pa.R.A.P. 311(d). Notice
of Appeal, 5/22/2014.
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suppression hearing, we reverse the order of the trial court and remand for

further proceedings.

      The facts underlying Sodomsky’s suppression issue were summarized

by this Court in a prior opinion as follows:

      Richard Kasting was the senior sales assistant in the technology
      department of the Circuit City Store located on Woodland Road,
      Wyomissing, Berks County. Mr. Kasting testified that on October
      15, 2004, [] Kenneth Sodomsky, came to Circuit City and asked
      Mr. Kasting to install an optical drive and DVD burner into his
      computer. The work order that [Sodomsky] executed that day
      authorized Circuit City to install and configure the optical drive
      unit and DVD in his desktop computer.

            In accordance with store practice, Mr. Kasting summarized
      to [Sodomsky] “what is done during the installation.”
      [Sodomsky] was informed that as part of the installation
      process, the installer would “have to make sure [the DVD
      burner] works.” There is no indication that [Sodomsky] asked
      how the DVD burner would be tested or in any manner restricted
      what procedure could be utilized to confirm the burner’s
      operability. [Sodomsky] requested that the work be performed
      on an expedited basis, and Mr. Kasting instructed him to return
      in approximately one hour.

             Toby Werner was in the middle of the installation process
      when Stephen Richert, the head of personal computer repairs at
      that Circuit City, arrived. Mr. Richert testified that the DVD drive
      was installed when he arrived in the department, but the
      software had not yet been installed. Mr. Richert explained that
      all DVD burners and players were accompanied by software.2
      Mr. Richert testified specifically that at Circuit City, with “every
      installation” of the hardware, “any supplementary software” was
      installed both as a courtesy “and to make sure when it leaves
      the store, we can guarantee that it is working.”

      __________
         2
           [Sodomsky] maintains that he did not request installation
         of the DVD software. However, it is clear that Circuit City
         could not test the hardware without installing the software
         and always installed any software accompanying a

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       hardware installation.  [Sodomsky] was told that the
       hardware would be tested.

     __________

           After the software was installed, Mr. Richert performed a
     general search for a video to test the new DVD drive. More
     specifically, he testified as follows:

           Well, after we installed the software, we did a generic
       search of the [personal computer (PC)] where you click on
       the start menu, you click on search, and this being the
       [W]indows XP, a search box comes up and it is custom
       made to this operating system. In this case, this system,
       it’s about half way down the screen on the left-hand side
       there’s a search, and you can enter—in this case, you
       could enter a specific name of a file that you’re looking for
       and find it.

           We weren’t looking for anything specific, so we did a
       generic search. Below the field where you could enter the
       name of a file that you are looking for, you can click on the
       generic boxes listed, picture, movie or if you click it, it
       does a general search of the whole PC and finds any of
       that type of objects that you're looking for. In this case,
       we clicked movies or video, and it brings up all the
       different formats of videos.

           There are many different types of video formats.
       There’s M-peg, MPG–4, AVI, Quick Time. Any types of
       those files, if used to place on Windows Media Player,
       which is a program that’s inherent to PC when running
       [W]indows XP or to the DVD software, in certain
       circumstances, if you install the software and it wasn’t
       installed properly or you didn’t receive notification and you
       try to play the files or play a DVD movie on the PC, you
       get distortion that isn’t necessarily seen right away when
       you install it.

           So, in this case, we wanted to make sure that all types
       of files were working fine so that you wouldn’t get any type
       of errors. When you install the different type of software,
       there’s something called code X. It’s a little piece of
       software inside the PC that helps the PC better understand
       and translate video signals through different players.


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            So, in this case, if we play a movie file and we get
        distorted colors or blurring of the image or a ghosting
        effect where all color is inverted, we know there is a
        problem with the installation and we have to find it and fix
        it. If there is a software update, we have to uninstall and
        reinstall it, if there was an issue.

           Mr. Richert testified that once the search button was
     activated for a given object, the computer automatically loaded
     the requested files onto the screen, which continued to enlarge
     by itself. Thus, after the search was initiated, Mr. Richert did not
     manipulate the computer further to see the entire list of videos
     The first few video titles that appeared from [Sodomsky’s] video
     list were innocuous. However, as the video log continued to
     compile on the computer screen, which occurred without any
     human intervention, some of the files appeared to be
     pornographic in nature due to their titles which included
     masculine first names, ages of either thirteen or fourteen, and
     sexual acts. Mr. Richert clicked on “the first one” that appeared
     questionable, and the video contained the lower torso of an
     unclothed male, and when a hand approached the male’s penis,
     Mr. Richert immediately stopped the video.              Mr. Richert
     contacted his manager and then telephoned the Wyomissing
     police.

           During cross-examination, Mr. Richert admitted that he
     had been told by a Pennsylvania State Police Officer to contact
     police if he ever ran across what appeared to be child
     pornography while at work. At the time, Mr. Richert was taking
     a course at a local college and hoped to enter the law
     enforcement field.

           Wyomissing Police Detective George Bell and two other
     police officers responded to the call and viewed the same video
     clip.   When [Sodomsky] arrived to retrieve his computer,
     Detective Bell informed him that his computer was being seized
     because police suspected that it contained child pornography.
     [Sodomsky] responded that he knew what they had found and
     that his “life was over.” Police took the computer to the police
     station, obtained a warrant to search it, and discovered child
     pornography.

Commonwealth v. Sodomsky, 939 A.2d 363, 364-366 (Pa. Super. 2007).




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        Sodomsky was subsequently charged with two counts of sexual abuse

of children (child pornography), and one count of obscene and other sexual

materials and performances.2 On May 13, 2005, he filed a pre-trial motion

to suppress the evidence recovered from his computer, asserting the

warrantless search and seizure of the computer violated his Fourth

Amendment rights. See Omnibus Pre-Trial Motion, 5/13/2005, at ¶ 13. The

trial court conducted a suppression hearing and, on November 9, 2005,

entered an order granting Sodomsky’s suppression motion. Specifically, the

court found that although the police officers’ viewing of the video file on

Sodomsky’s computer was a “reasonable search, not in violation of

[Sodomsky’s] rights of privacy[,]” the officers’ subsequent seizure of the

computer without a warrant was “unreasonable.”         Findings of Fact and

Conclusions of Law, 11/10/2005, at 4, 7.         The Commonwealth filed an

appeal to this Court.

        In a published opinion, a panel of this Court reversed, concluding

Sodomsky “did not retain a privacy interest in his videos” stored on his

computer. Sodomsky, supra, 939 A.2d at 369. The panel opined: “Since

[Sodomsky] abandoned his privacy interest in the videos contained in the

computer, he cannot object to the subsequent viewing of the video list and



____________________________________________


2
    See 18 Pa.C.S. §§ 6312(d)(1) and 5903(a)(3), respectively.




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file by police.”3 Id. Sodomsky’s petitions seeking to appeal the decision to

both the Pennsylvania Supreme Court and the United States Supreme Court

were subsequently denied. See Commonwealth v. Sodomsky, 962 A.2d

1196 (Pa. 2008), cert. denied, 556 U.S. 1282 (2009).

       Upon remand to the trial court, Sodomsky filed a petition seeking to

introduce new evidence on the motion to suppress.      In an accompanying

memorandum of law, Sodomsky asserted he intended to present expert

testimony that the procedure used by the Circuit City employee to test the

hard drive installation was improper and, therefore, “the decision that Mr.

Sodomsky abandoned his expectation of privacy in the contents of his

computer was based on facts that are demonstrably false.” Memorandum of

Law in Support of Petition to Introduce New Evidence at Motion to Suppress,

3/12/2010, at 6. The trial court conducted a two-day suppression hearing,

and, on March 18, 2011, entered an order, once again, granting Sodomsky’s

motion to suppress. See Order, 3/18/2011. The trial court determined the

Circuit City employee did not act in a “commercially-acceptable” manner

when he opened the video file on Sodomsky’s computer to test the DVD

burner. Trial Court Opinion, 6/2/2011, at 8. Therefore, the court concluded


____________________________________________


3
  The panel also rejected Sodomsky’s contention that the seizure of the
computer was improper “because it was accomplished without a warrant.”
Sodomsky, supra, 939 A.2d at 370. Rather, the panel agreed with the
Commonwealth’s claim that “the plain view exception to the warrant
requirement applied herein.” Id.



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Sodomsky retained a “constitutionally protected privacy interest in the

contents of his computer, so any examination of the videos by the police

would have been subject to a warrant requirement.” Id. at 9.

       The Commonwealth filed another appeal to this Court.                        In an

unpublished decision, a panel of this Court, once again, reversed the

decision of the trial court.      See Commonwealth v. Sodomsky, 47 A.3d

1257 [657 MDA 2011] (Pa. Super. 2012) (unpublished memorandum). The

panel found that “none of the evidence presented at the second suppression

hearing [altered its] previous conclusion that [Sodomsky] relinquished

control of the video files on his computer when he took [it] to Circuit City to

install a DVD burner and thereby abandoned his privacy interest in the

files.”4 Id., unpublished memorandum at 13. Accordingly, for the second

time, the panel reversed the trial court’s order and remanded the case for

further   proceedings.        Sodomsky         again   sought   relief   with   both   the

Pennsylvania and United States Supreme Courts, but his requests for review

were denied.       See Commonwealth v. Sodomsky, 63 A.3d 1246 (Pa.

2013), cert. denied, 134 S.Ct. 212 (U.S. 2013).

       Subsequently, on December 16, 2013, after the case was remanded to

the trial court, Sodomsky filed a petition seeking to re-open the suppression
____________________________________________


4
   The panel also        noted the Commonwealth waived its contention that
Sodomsky failed          to present new evidence warranting the court’s
reconsideration of      the suppression issue because it did not respond to the
trial court’s rule to   show cause. See id., unpublished memorandum at 8-9.



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hearing for a second time, now claiming there was an intervening change in

the law, namely, the January 23, 2012, decision of the United States

Supreme Court in United States v. Jones, 132 S.Ct. 945 (U.S. 2012).

Sodomsky asserted that because Jones was decided after the briefs were

filed in the prior appeal, and its holding “absolutely would affect the outcome

of the motion,” it was “necessary to re[-]open the suppression proceedings

for consideration of the impact of Jones on the suppression claim.” Petition

to Re-Open Suppression Hearing Based on Intervening Change in Law,

12/16/2013, at 5-66. Sodomsky also argued the suppression record should

be opened “in the interests of justice[.]” Id. at 5.

       The trial court convened yet another suppression hearing on January

31, 2014.5 Thereafter, on April 25, 2014, the trial court entered an order

granting Sodomsky’s motion to suppress for the third time.         This timely

Commonwealth appeal followed.6

       A divided panel of this Court affirmed the trial court’s suppression

order.    However, the Commonwealth sought en banc review, which this

Court granted. The matter is now ready for our review.
____________________________________________


5
  No witnesses were presented at this hearing. Rather, the court considered
the arguments of counsel. See generally N.T., 1/31/2014.
6
  On May 30, 2014, the trial court ordered the Commonwealth to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). The Commonwealth complied with the court’s directive, and filed a
concise statement on June 17, 2014.




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       The Commonwealth first challenges the trial court’s decision to re-

open the suppression hearing for a second time.7 Specifically, it argues the

Jones decision did not constitute new law because (1) it was decided before

this Court issued its memorandum decision in 2012, and (2) the holding in

Jones simply “reminded the legal community that a traditional property

analysis still existed” for purposes of a Fourth Amendment challenge.

Commonwealth’s Brief at 14, 17.                We find the Commonwealth’s second

argument dispositive in this appeal.

       Preliminarily, we note that when reviewing a Commonwealth appeal

from an order granting the suppression of evidence,

       we follow a clearly defined standard of review and consider only
       the evidence from the defendant's witnesses together with the
       evidence of the prosecution that, when read in the context of the
       entire record, remains uncontradicted. The suppression court's
       findings of fact bind an appellate court if the record supports
       those findings. The suppression court's conclusions of law,
       however, are not binding on an appellate court, whose duty is to
       determine if the suppression court properly applied the law to
       the facts.

Commonwealth v. Carter, 105 A.3d 765, 768 (Pa. Super. 2014) (en banc)

(citation omitted), appeal denied, 117 A.3d 295 (Pa. 2015).

       Pennsylvania Rule of Criminal Procedure 581 “is designed to provide

one single procedure for the suppression of evidence alleged to have been



____________________________________________


7
  We have consolidated the Commonwealth’s first two questions for ease of
disposition.



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obtained in violation of the defendant’s rights.” Pa.R.Crim.P. 581, Comment.

The Rule provides, in relevant part:

       (B) Unless the opportunity did not previously exist, or the
       interests of justice otherwise require, such motion shall be
       made only after a case has been returned to court and shall be
       contained in the omnibus pretrial motion set forth in Rule 578. If
       timely motion is not made hereunder, the issue of suppression of
       such evidence shall be deemed to be waived.

Pa. R. Crim. P. 581 (emphasis supplied).8 “Whether ‘the opportunity did not

previously exist, or the interests of justice otherwise require . . .’ is a matter

for the discretion of the trial judge.”        Commonwealth v. Williams, 323

A.2d 862, 864 (Pa. Super. 1974) (citation omitted).

       As outlined above, in December of 2013, after a panel of this Court

reversed the trial court’s second order suppressing the evidence recovered

from Sodomsky’s computer, and both the Pennsylvania Supreme Court and

the United States Supreme Court declined to accept his appeal for the

second time, Sodomsky petitioned the trial court to re-open his suppression

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8
   We note Subsection (J) of the Rule states that when the trial court
determines evidence should not be suppressed, “such determination shall be
final, conclusive, and binding at trial, except upon a showing of evidence
which was theretofore unavailable[.]” Pa.R.Crim.P. 581(J). However, the
Rule does not specifically provide for the situation in the present case, that
is, where a trial court has, twice, ordered suppression of evidence, but both
orders have been reversed by this Court on appeal.            Accordingly, we
extrapolate that upon remand, following a reversal of a suppression order on
appeal, a trial court may re-open a suppression hearing only under the
limited circumstances set forth in subsection (B), i.e., when the opportunity
to present the issue did not previously exist or the interests of justice
otherwise require.



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hearing once again. He asserted the United States Supreme Court’s decision

in Jones, supra, constituted a “clear change of law[.]” Petition to Re-Open

Suppression Hearing Based on Intervening Change in Law, 12/16/2013, at

4, 5.     Upon hearing argument on this issue, the trial court agreed,

concluding:

        Jones may not be entirely new law, but it reaffirmed that the
        government’s physical intrusion on [Sodomsky’s] “effect” for the
        purpose of obtaining information constitutes a “search” and that
        this type of encroachment on an area enumerated in the Fourth
        Amendment would have been considered a search within the
        meaning of the Amendment at the time it was adopted. [Jones]
        is new law in the sense that the expectation of privacy standard
        is no longer the exclusive test to determine if a search violates
        the Fourth Amendment. Thus, this approach is the equivalent to
        new law because it had not been applied since the expectation of
        privacy standard was enunciated in Katz v. United States, 389
        U.S. 347 (1967) and was not applied or addressed by the
        Superior Court in the case sub judice.

Trial Court Opinion, 7/29/2014, at 4.

        Our review, however, leads to the conclusion that Jones did not create

an intervening change in the law, which would justify the re-opening of

Sodomsky’s suppression hearing.         Rather, we find the Jones Court, in

determining the government’s warrantless attachment of a GPS device to

the defendant’s vehicle and subsequent use of that device to monitor the

vehicle’s movement, constituted a search under the Fourth Amendment,

reaffirmed the Fourth Amendment’s continued long standing protection of a

person’s “effects.” See U.S. CONST. AMEND. IV (“The right of the people to be




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secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated ….”) (emphasis supplied).

      A summary of the facts in Jones is necessary to our analysis.         In

Jones, the FBI suspected the defendant was involved in drug trafficking.

Based on its investigation, the FBI obtained a search warrant to attach a

GPS tracking device to the defendant’s car.      The warrant authorized the

installation of the GPS device for a 10-day period in the District of Columbia.

However, on the 11th day, the FBI installed the GPS to the defendant’s car

while it was parked in a public lot in Maryland. For the next month, the FBI

monitored the car’s movements, which resulted in more than 2,000 pages of

data. The defendant was ultimately charged with numerous drug offenses.

Jones, supra, 132 S.Ct. at 947.

      The defendant filed a motion to suppress the evidence obtained

through the GPS tracking device.     The court granted the motion in part,

suppressing only the data obtained when the vehicle was parked in the

defendant’s own garage; “[i]t held the remaining data admissible, because

‘[a] person traveling in an automobile on public thoroughfares has no

reasonable expectation of privacy in his movements from one place to

another.’”    Id. at 947.   The defendant was ultimately convicted of all

charges.     The Court of Appeals for the District of Columbia reversed the

conviction, finding the government’s warrantless use of the GPS device

violated the defendant’s Fourth Amendment rights.        The Supreme Court

agreed, holding the government’s “physical intrusion” upon the private

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property of the defendant constituted a search within the meaning of the

Fourth Amendment.9 Id. at 949.

       Preliminarily, we note the facts in Jones are not analogous to those

presented in the case sub judice.              As delineated above, in Jones, “[t]he

Government physically occupied private property” by installing a GPS device

on the defendant’s vehicle for the explicit purpose of monitoring the vehicle’s

movements. Jones, supra, 132 S.Ct. at 949. Conversely, here, the police

viewed Sodomsky’s computer files, after Sodomsky left his computer at a

Circuit City store for service (abandoning his privacy interests in the

property for a limited time) and, during the course of that service visit, a
____________________________________________


9
  The Jones decision was authored by, now deceased, Justice Scalia, joined
by Chief Justice Roberts, Justice Kennedy, Justice Thomas and Justice
Sotomayor. Justice Sotomayor also authored a concurring opinion in which
she expressed concern with the current state of the law regarding the
reasonable expectation of privacy in our digital information society.
However, she explained: “Resolution of these difficult questions in this case
is unnecessary … because the Government’s physical intrusion on Jones’
Jeep supplies a narrower basis for decision.” Jones, 132 S.Ct. at 957 (J.
Sotomayor, concurring). With respect to the facts of the case before her,
Justice Sotomayor noted “[t]he Government usurped Jones’ property for the
purpose of conducting surveillance on him, thereby invading privacy
interests long afforded, and undoubtedly entitled to, Fourth Amendment
protection.” Id. at 954. Finally, Justice Alito, joined by Justices Ginsburg,
Breyer and Kagan, concurred in the judgment. Justice Alito opined that the
decision should be based upon whether the defendant’s “reasonable
expectations of privacy were violated by the long-term monitoring of the
movements of the vehicle he drove.” Id. at 958 (J. Alito, concurring in
judgment). Therefore, five of the Justices still believed privacy interests
were an essential consideration in a Fourth Amendment analysis.




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clerk, a private citizen, happened upon the files in question. Although the

police eventually seized Sodomsky’s computer, it was only after they had

viewed the identified pornographic video clip. See Sodomsky, supra, 939

A.2d at 370 (finding plain view exception to the warrant requirement

excused police officer’s warrantless seizure of Sodomsky’s computer).

       Furthermore, the Jones Court clearly stated it was not creating new

law. Rather, the Supreme Court explained: “We have no doubt that such a

physical intrusion[, as occurred here,] would have been considered a ‘search’

within the meaning of the Fourth Amendment when it was adopted.” Jones,

supra, 132 S.Ct. at 949.           Although the Court recognized that after its

decision in Katz, supra, the focus of Fourth Amendment jurisprudence

shifted to a defendant’s reasonable expectation of privacy, it explained that

Katz “did not narrow the Fourth Amendment’s scope.”10              Id. at 951.

Rather, the Katz decision expanded Fourth Amendment protections without


____________________________________________


10
   In Katz, the Supreme Court held that the FBI’s placement of an electronic
listening device on a public telephone booth to eavesdrop on a suspect’s
conversations violated Fourth Amendment principles. Katz, supra, 389 U.S.
at 348-349, 359. In doing so, the Court explained:

       [T]he Fourth Amendment protects people, not places. What a
       person knowingly exposes to the public, even in his own home or
       office, is not a subject of Fourth Amendment protection. But
       what he seeks to preserve as private, even in an area accessible
       to the public, may be constitutionally protected.

Id. at 351-352 (internal citations omitted).




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“withdraw[ing] any of the protection which the Amendment extends to the

home.”11     Id., quoting Alderman v. United States, 394 U.S. 165, 180

(1969).

       As noted previously, Rule 581 permits a defendant to file a

supplemental suppression motion when “the opportunity did not previously

exist or the interests of justice otherwise require.”    Pa.R.Crim.P. 581(B)

(emphasis supplied).       Here, Sodomsky’s sole basis for seeking to re-open

the suppression hearing was the Supreme Court’s decision in Jones.

However, as we explained above, Sodomsky’s opportunity to raise a

property-based suppression claim did previously exist. Indeed, the Jones

Court did not create new law, but rather reaffirmed that (1) property-based

Fourth Amendment rights have always existed, and (2) the Katz decision,

which focused exclusively on a defendant’s reasonable expectation of

privacy, “did not narrow the Fourth Amendment’s scope.”12 Jones, supra,
____________________________________________


11
   The Jones Court also relied upon the Supreme Court’s prior decision in
Soldal v. Cook County, 506 U.S. 56 (1992), in which the Court
“unanimously rejected the argument that although a seizure had occurred
in a technical sense when a trailer home was forcibly removed, no Fourth
Amendment violation occurred because law enforcement had not invade[d]
the [individuals’] privacy.”   Jones, supra, 132 S.Ct. at 951 (internal
punctuation omitted and emphasis supplied), citing Soldal, supra.
Therefore, the property-based Fourth Amendment argument that Sodomsky
contends is “new law,” has existed since, at least, 1992.
12
  Sodomsky claims that despite the language in Jones, “[t]he reality is that
courts all over the country – both state and federal – read Katz … to mean
that demonstrating a reasonable expectation of privacy is the only way by
which one can bring into play one’s Fourth Amendment protections.”
(Footnote Continued Next Page)


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at 951. Moreover, under the same reasoning, the interests of justice did not

require re-opening the suppression hearing based upon Jones, because the

decision did not present a change in the law.13

      Therefore, because the Jones decision did not present an intervening

change in the law, we conclude the trial court abused its discretion in re-

opening Sodomsky’s suppression hearing for the second time after its two


                       _______________________
(Footnote Continued)

Sodomsky’s Brief at 24 n.6. See also Trial Court Opinion, 7/29/2014, at 4.
However, neither Sodomsky nor the trial court acknowledge that the
property-based right Sodomsky advocates was recognized more than 20
years ago by the Supreme Court in Soldal. See Soldal, supra, 506 U.S. at
65 (“We … are unconvinced that any of the Court’s prior cases supports the
view that the Fourth Amendment protects against unreasonable seizures of
property only where privacy or liberty is also implicated.”).
13
    We note that, traditionally, Pennsylvania courts have applied the
“interests of justice” exception “to excuse a party’s tardy presentation of a
suppression motion.” Commonwealth v. Johonoson, 844 A.2d 556, 561
(2004) (emphasis supplied), appeal denied, 863 A.2d 1144 (Pa. 2004). See
id. (finding no abuse of discretion on the part of the trial court in denying
tardy supplemental suppression motion when defendant knew facts
surrounding the stop at time he filed his first motion; in initial motion he
argued his statement to trooper was not voluntary, but in supplemental
motion he claimed entire encounter was an illegal investigative detention).
But see Commonwealth v. Long, 753 A.2d 272 (finding trial court did not
abuse its discretion in considering defendant’s untimely, oral, supplemental
suppression motion presented at the close of the Commonwealth’s case
because motion challenged legitimacy of traffic stop based on videotape
from inside police cruiser, and videotape was not shown to the defense until
the first day of trial). Here, Sodomsky did not seek to file a “tardy”
suppression motion because he uncovered new evidence, rather he sought
to file a supplemental motion based upon an intervening change in the law.
Because, as discussed supra, we conclude the Jones decision did not create
“new law,” we find the “interests of justice” also do not require re-opening
his suppression hearing.



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prior suppression orders were reversed by this Court on appeal.       Indeed,

Sodomsky is not entitled to “three bites” of the proverbial suppression apple.

Because we agree the trial court should not have reconsidered Sodomsky’s

suppression argument, we need not address the Commonwealth’s third issue

on appeal.

      Order reversed. Case remanded for proceedings consistent with this

decision. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2016




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