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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                     v.                    :
                                           :
DAVID HARRIS,                              :          No. 2881 EDA 2018
                                           :
                          Appellant        :


       Appeal from the Judgment of Sentence Entered October 26, 2017,
                 in the Court of Common Pleas of Bucks County
               Criminal Division at No. CP-09-CR-0007165-2016


BEFORE: NICHOLS, J., McCAFFERY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED JULY 17, 2020

        David Harris appeals from the October 26, 2017 aggregate judgment of

sentence of one to five years’ imprisonment, followed by seven years’

probation, imposed after the trial court found him guilty of 20 counts of sexual

abuse of children — child pornography and one count of criminal use of

communication facility.1     After careful review, we affirm the judgment of

sentence.

        The trial court set forth the relevant facts of this case, as gleaned from

the affidavit of probable cause and its May 31, 2017 findings of fact, as follows:

              On May 16, 2016, [appellant] applied for a United
              States Passport for [T.B.B., a then-sixteen year-old
              male]. The Travel Plans section of the application
              completed by [appellant] stated [T.B.B.] would be
              spending a month in France[.]

1   18 Pa.C.S.A. §§ 6312(d) and 7512(a), respectively.
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          . . . [Appellant] provided a document “Appointment of
          Custodian and Legal Guaradian [sic]” (ACLG
          document) dated August 25, 2012, to show he had
          legal custody of [T.B.B.] The ACLG document had
          several misspellings including [T.B.B.’s] first name.
          The document allegedly contains signatures of
          [T.B.B.’s] parents.

          [Appellant] has 9 criminal arrests including an arrest
          in Abington Township on January 22, 2000 for []
          corruption of minors, [] unlawful contact with minors,
          [and] criminal solicitation[, 18 Pa.C.S.A. §§ 6301,
          6318, and 902, respectively]. [Appellant] later [pled]
          guilty to the corruption of minors and criminal
          solicitation [charges].

          The Abington Township Police report regarding the
          January 22, 2000 arrest states “[appellant] was
          arrested after an investigation revealed he had
          solicited (attempted) a 12 year old boy for sex. The
          solicitation occurred via the Internet. The victim
          provided a detailed statement implicating [appellant].
          Both the victim’s and [appellant’s] statement said
          they met over the Internet[.”]

          . . . [T.B.B.] advised he resides alone with [appellant]
          and has done so since August of 2012. [T.B.B.] stated
          that he is living with [appellant] so he can get a better
          education. [T.B.B.] stated that he was doing an
          exchange student program and was visiting France
          and then going to come back to the United States with
          a student from France. [T.B.B.] was asked how
          [appellant] had found the exchange program.
          [T.B.B.] said it was not through the school, or church
          it was something [appellant] had found online.
          [T.B.B.] described [appellant’s] computer as a
          desktop computer located in a room off of the kitchen
          in their home located at 544 Lawn Avenue[,]
          Sellersville, PA 18960. [T.B.B.] advised he is planning
          on bring [sic] back a 15 year old boy who [T.B.B.] has
          been in communication with over Skype.

          ....



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            On June 5[,] 2016, Special Agent Rosemarie Vesci of
            the Federal Bureau of Investigation [(“FBI”)]
            expressed her concerns about possible child sexual
            abuse and human trafficking in adolescent boys that
            may be occurring in Sellersville, Bucks County, to
            Detective [David] Kemmerer of the Bucks County
            District Attorney’s Office.

            On June 6[,] 2016, a search warrant was issued by
            Magisterial District Judge Charles Baum to search a
            desktop computer and other items, the computer
            being located in a room off of the kitchen in the
            residence of [appellant].

            The execution of that search warrant yielded the
            seizure of four items: Number one or letter A, a
            Network Systems desktop computer; B, a USB flash
            drive; C, a Lexar 16 GB flash drive; and, D, a Dell
            Latitude laptop computer.

            Bucks County Detectives -- Bucks County Detective
            [Jack] Slattery interviewed [appellant] on June 6,
            2016, during an -- during the time of the execution of
            the search warrant, at which time [appellant] made
            certain statements which the Commonwealth wishes
            to introduce into evidence at trial in this matter.

            Forensic analysis of items seized pursuant to the
            search warrant was conducted resulting in the
            issuance of an arrest warrant for [appellant].

Trial court opinion, 9/30/19 at 1-2, 3 (numeration, extraneous capitalization,

citation to record, and date of birth omitted; ellipses and some bracketed

information in original).

      A search of appellant’s computers and flash drives yielded 197 images

and five videos depicting child pornography involving minor male children, as

well as evidence of appellant’s participation in the aforementioned exchange

program on behalf of [T.B.B.] (Notes of testimony, 5/31/17 at 8-9.) Appellant


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was subsequently arrested and charged with 20 counts of sexual abuse of

children — child pornography and one count of criminal use of communication

facility on September 23, 2016. On December 12, 2016, appellant filed an

omnibus pretrial motion to suppress.        On February 13 and 15, 2017,

appellant filed amended suppression motions, arguing that the search of his

computers and accompanying electronic devices was unlawful because the

search warrant lacked probable cause; challenging the forensic search

methodology utilized by the FBI; and alleging that a second warrant was

necessary to search the specific files on his computers and flash drives. (See

“Amended Omnibus Pre-Trial Motion,” 2/13/17 at ¶ 3; “Second Amended

Omnibus Pre-Trial Motion,” 2/15/17 at ¶ 1.)           On May 30, 2017, the

suppression court held a hearing on appellant’s suppression motions.

Following the hearing, the suppression court denied appellant’s motions on

May 31, 2017. That same day, appellant waived his right to a jury trial and

proceeded to a stipulated bench trial. As noted, the trial court found appellant

guilty on all counts and sentenced him to an aggregate term of one to

five years’ imprisonment, followed by seven years’ probation, on October 26,

2017.   Appellant filed a timely post-sentence motion that was ultimately




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denied by operation of law, pursuant to Pa.R.Crim.P. 720(B)(3), on

September 20, 2018. This appeal followed on October 1, 2018.2

     On October 2, 2018, the trial court ordered appellant to file a concise

statement   of     errors   complained   of    on   appeal,   in   accordance   with

Pa.R.A.P. 1925(b).      Appellant filed a timely Rule 1925(b) statement on

October 9, 2018, and the trial court filed its Rule 1925(a) opinion on

September 30, 2019.

     Although appellant sets forth seven interrelated issues in his “Statement

of Questions Involved” (see appellant’s brief at 3-4), he has compressed his

argument section into four primary claims for our review:

            I.      The affidavit of probable cause was devoid of
                    sufficient information to support the issuance of
                    a search warrant.

            II.     The aforementioned search warrant was
                    deficient because it relied on stale information.

            III.    Even if there was probable cause to believe that
                    a search warrant should issue for evidence of
                    child trafficking, there was nothing in the
                    warrant that alluded to the possession of child
                    pornography and consequently the Government
                    exceeded the scope of the search warrant when
                    it sent the computer to the FBI for forensic
                    analysis.

2Due to an administrative breakdown in trial court operations, we decline to
quash appellant’s appeal as untimely and will review the appeal on its merits.
This court has held that an administrative breakdown of the trial court occurs
when, as here, the clerk of courts for the trial court fails to enter an order
deeming post-sentence motions denied by operation of law pursuant to
Pa.R.Crim.P. 720(B)(3)(c). See Commonwealth v. Patterson, 940 A.2d
493, 498-499 (Pa.Super. 2007) (citation omitted), appeal denied, 960 A.2d
838 (Pa. 2008).


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            IV.   The learned trial court erred when it concluded
                  that the search warrant was valid despite the
                  fact that material exculpatory information was
                  withheld from the Magistrate by the affiant.

Id. at 8, 16, 18, 29 (full capitalization omitted).

            [Our] standard of review in addressing a challenge to
            the denial of a suppression motion is limited to
            determining whether the suppression court’s factual
            findings are supported by the record and whether the
            legal conclusions drawn from those facts are correct.
            Because the Commonwealth prevailed before the
            suppression court, we may consider only the evidence
            of the Commonwealth and so much of the evidence
            for the defense as remains uncontradicted when read
            in the context of the record as a whole. Where the
            suppression court’s factual findings are supported by
            the record, [the appellate court is] bound by [those]
            findings and may reverse only if the court’s legal
            conclusions are erroneous.

Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015) (citation

omitted; brackets in original), appeal denied, 135 A.3d 584 (Pa. 2016).

      Prior to any discussion of the merits of appellant’s claims, we must first

determine whether the record is sufficiently complete to enable our review.

We note that to the extent appellant’s issues require consideration of the

testimony presented during the May 30, 2017 suppression hearing, we find

that these claims are waived because appellant failed to ensure that the notes

of testimony from this hearing were made part of the certified record. This

court has long recognized that “[w]hen the appellant . . . fails to conform to

the requirements of [Pa.R.A.P.] 1911 [relating to transcript requests], any

claims that cannot be resolved in the absence of the necessary transcript or


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transcripts must be deemed waived for the purpose of appellate review.”

Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.Super. 2006) (citation

omitted), appeal denied, 916 A.2d 632 (Pa. 2007).           It is the appellant’s

responsibility to make certain that the certified record contains all items

necessary to ensure that this court is able to review his claims.           See

Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa.Super. 2008) (en banc).

This court has stated:

            It is black letter law in this jurisdiction that an
            appellate court cannot consider anything which is not
            part of the record in the case. It is also well-settled
            in this jurisdiction that it is Appellant’s responsibility
            to supply this Court with a complete record for
            purposes of review. A failure by appellant to insure
            that the original record certified for appeal contains
            sufficient information to conduct a proper review
            constitutes waiver of the issue sought to be examined.

Commonwealth v. Martz, 926 A.2d 514, 524-525 (Pa.Super. 2007)

(citations and internal quotation marks omitted), appeal denied, 940 A.2d

363 (Pa. 2008).

      Here, the record contains a transcript of the May 31, 2017 bench trial,

during which the parties agreed to incorporate the testimony from the May 30,

2017 suppression hearing into the record, but said testimony was never

transcribed. (See notes of testimony, 5/31/17 at 6-7.) Moreover, although

a May 31, 2017 transcript of the trial court’s “findings of fact and conclusions

of law” is included in the certified record, this transcript does not support

appellant’s claims that go beyond his challenges to the four corners of the



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affidavit of probable cause and the search warrant. Based on the foregoing,

we find that appellant has waived his claims that rely on information beyond

the four corners of the affidavit of probable cause and the search warrant

itself, including: (a) his challenge to the forensic methodology utilized by the

FBI to extract child pornography from his computer; (b) his averment that a

second search warrant was necessary to view the child pornography on his

computers and flash drives; and (c) his contention that the Commonwealth

omitted material facts from the affidavit of probable cause to mislead the

Magistrate. (See generally appellant’s brief at 21-31; Issues III and IV.)

         We now turn to appellant’s remaining claims, which relate to the

sufficiency of the affidavit of probable cause, whether the search warrant

relied upon stale information, and whether it was overbroad. (See id. at 8-20;

Issues I-III.) Following a thorough review of the record, including the briefs

of the parties, the applicable law, and the well-reasoned opinion of the trial

court, it is our determination that appellant’s remaining claims warrant no

relief. The trial court comprehensively discussed appellant’s challenges to the

four corners of the affidavit of probable cause and the search warrant and

concluded that they were without merit.        We find that the trial court’s

conclusions are supported by competent evidence and are clearly free of legal

error.    Specifically, we agree with the trial court that the search warrant

described and identified the items to be seized with specificity and that “[t]he

affidavit clearly states probable cause to support the search for [evidence of



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appellant’s ‘unlawful contact with minors, including electronic communications

with minors’].” (Trial court opinion, 9/30/19 at 8-9.) Likewise, we agree with

the trial court that there is no arguable merit to appellant’s claim that the

information contained in the affidavit of probable cause was stale, as the lapse

of time of appellant’s past criminal history was but one factor that the trial

court relied on in conducting its totality of the circumstances analysis, and did

not make the other current information the court relied on stale. (Id. at 9-10.)

Lastly, we agree with the trial court that appellant’s claim that the search of

his computers was overbroad and exceeded the scope of the warrant fails.

(Id. at 10.) As the trial court properly concluded in its opinion,

            if in searching for the evidence originally sought,
            evidence of other criminal acts is identified, then that
            evidence is permitted to be seized. The search was
            designed to find evidence of illegal contact with a
            minor.     The evidence seized demonstrates illegal
            contact with a minor. The validity of the search is not
            compromised merely because there was evidence of
            child pornography instead of different evidence of
            illegal contact with a minor. Once a determination is
            made that there is probable cause to search
            [a]ppellant’s computer for evidence of unlawful
            contact with minors, the subsequent identification of
            child pornography during the search will be valid and
            proper, and any evidence acquired therefrom may be
            admissible at trial.

Id. at 10-11 (citations omitted).

      Accordingly, we adopt the trial court’s comprehensive September 30,

2019 opinion as our own for purposes of appellate review of appellant’s

remaining claims.



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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 7/17/20




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