J-A27043-14

                             2015 PA Super 63

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :            PENNSYLVANIA
                 Appellee               :
                                        :
           v.                           :
                                        :
RONALD LEE DOUGALEWICZ, JR.,            :
                                        :
                 Appellant              :            No. 247 WDA 2014


   Appeal from the Judgment of Sentence entered on September 6, 2013
             in the Court of Common Pleas of Lawrence County,
               Criminal Division, No. CP-37-CR-0000514-2009


COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                 Appellee                :
                                         :
           v.                            :
                                         :
RONALD LEE DOUGALEWICZ, JR.,             :
                                         :
                 Appellant               :           No. 248 WDA 2014

   Appeal from the Judgment of Sentence entered on September 6, 2013
             in the Court of Common Pleas of Lawrence County,
               Criminal Division, No. CP-37-CR-0001129-2009

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and MUSMANNO, JJ.

OPINION BY MUSMANNO, J.:                          FILED MARCH 30, 2015

     Ronald Lee Dougalewicz, Jr. (“Dougalewicz”), appeals from the

judgment of sentence imposed following his convictions of one count each of

aggravated indecent assault of a person less than 16 years of age, indecent

assault of a person less than 16 years of age, and sexual abuse of children—
J-A27043-14


possession of child pornography, and two counts of corruption of minors.1

We affirm.

      In 2008, Dougalewicz became the head coach for a summer league

softball team.   At that time, the 13-year-old victim played softball for the

summer league team.         Dougalewicz took an interest in the victim,

recognizing that she was an excellent player. As the trial court explained in

its Opinion, Dougalewicz spent time with the victim off of the softball field,

which included

      shopping at Dunham’s Sporting Goods, going to get ice cream,
      trips to the mall, golfing, the victim spending time at
      [Dougalewicz’s] residence and an excursion to a USA Softball
      game in Akron, Ohio. Initially, the trip to the USA Softball game
      was to include several other members of the team; however, the
      others decided not to attend the game, so [Dougalewicz] and the
      victim traveled by themselves. The victim testified that on the
      way home from the USA Softball game, [Dougalewicz] touched
      her upper thigh and played with her hair.

             [Dougalewicz] and the victim began texting shortly after
      they met in 2008[,] and the texting continued into 2009. It
      must be noted that [Dougalewicz] was no longer [the victim’s]
      softball coach, but was acting as the strength and conditioning
      coach at Union Area High School during that time. The victim’s
      mother became concerned about the amount of time the victim
      was spending with [Dougalewicz] and how often they were
      exchanging text messages. As a result, [the victim’s mother]
      instructed the victim to limit the amount of time she spent with
      [Dougalewicz]. On March 13, 2009, the victim was driven to
      Dunham’s Sporting Goods to purchase softball cleats by her
      friend, N.H. Afterwards, the victim asked N.H. to drive her to a
      house in the North Hill area of New Castle and later revealed
      that it was [Dougalewicz’s] residence. N.H. drove the victim to

1
  See 18 Pa.C.S.A. §§ 3125(a)(8), 3126(a)(8), 6312(d)(1), 6301(a)(1).
Dougalewicz was convicted under a prior version of Crimes Code section
6312(d).


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     [Dougalewicz’s] residence at approximately 6 p.m. or 7 p.m.
     The victim then ate dinner with [Dougalewicz] and his wife ….
     After dinner, the victim, [Dougalewicz, Dougalewicz’s wife,] and
     two    female    friends   of   Dougalewicz’s    wife]   entered
     [Dougalewicz’s] hot tub for 15 to 20 minutes. Everyone, except
     the victim, was drinking alcohol while they were in the hot tub.
     The victim then got out of the hot tub and changed her clothes.
     At that time, [Dougalewicz] told his wife that he was taking the
     victim home ….

           … [Dougalewicz] did not drive the victim to her home, but
     stopped on a driveway located on Matthews Road in Union
     Township, New Castle, Lawrence County, Pennsylvania.
     [Dougalewicz] told the victim that he was going to kiss her now,
     which he proceeded to do. He then unbuttoned [the victim’s]
     jeans and penetrated her vagina with his finger using his left
     hand. The incident lasted less than five minutes. [Dougalewicz]
     began driving back to his residence with the victim in the vehicle
     when he was stopped by Nashannock Township [P]olice [O]fficer
     Alfred DeCarbo [“Officer DeCarbo”]. [Dougalewicz] told Officer
     DeCarbo that the victim was his niece….                Eventually,
     [Dougalewicz] and the victim returned to [Dougalewicz’s]
     residence. At that time, [Dougalewicz’s wife] became angry
     because [Dougalewicz] returned with the victim….

Trial Court Opinion, 3/31/14, at 2-4. The victim spent that night sleeping on

a couch at Dougalewicz’s residence. Dougalewicz texted the victim asking

her if she was alright. The next morning, Dougalewicz asked the victim if

they were going to finish what they had started.

     The next day, Dougalewicz texted the victim and arranged to meet her

at Harbor Bar.    Dougalewicz, driving his silver Hummer, picked up the

victim. After driving around, and purchasing food, Dougalewicz parked in a

car lot in West Pittsburg in Lawrence County. Dougalewicz and the victim

moved to the back seat, where Dougalewicz again penetrated the victim’s




                                 -3-
J-A27043-14


vagina with his finger. After about 15 to 20 minutes, Dougalewicz drove the

victim to a mobile home park near her house, and dropped her off.

     After that incident, Dougalewicz and the victim kept in constant

contact, and exchanged text messages.          The victim sent Dougalewicz

approximately   15   pictures,   which   included   pictures   of   her   vagina.

Dougalewicz sent a shirtless picture of himself to the victim. The victim told

several friends about the incidents with Dougalewicz.      Eventually, rumors

about the victim and Dougalewicz began circulating at Union Area High

School.   When questioned, the victim repeatedly denied having a sexual

relationship with Dougalewicz.    At one point, the victim fabricated a story

about having a sexual relationship with an unnamed black male. Eventually,

the victim admitted having a sexual relationship with Dougalewicz to the

Children’s Advocacy Center, and then to Pennsylvania State Trooper Harry

Gustafson.

     During the police investigation, on March 24, 2009, Union Township

Police Officer Michael T. Mrozek (“Officer Mrozek”) filed, with the local

Pennsylvania magisterial district judge (“MDJ”), an Application for Search

Warrant and Authorization (“Application”) to search and seize

     [a]ny and all text messages, picture mail and phone calls to and
     from Verizon phone number 724-[redacted] [“the Verizon
     phone”], and the same for Sprint PCS Cell phone number 724-
     [redacted] [“the Sprint phone”] in regards to alleged sexual
     misconduct with a 14[-]year[-]old female by Dougalewicz.




                                  -4-
J-A27043-14


Application, 3/24/09, at 1.     The Application described the items to be

searched as “[a]ll phone records” belonging to the Verizon phone and the

Sprint phone. Id. Officer Mrozek’s Affidavit of Probable Cause (“Affidavit”)

averred, in relevant part, as follows:

      I[,] Officer Mrozek[,] am in the process of investigating alleged
      sexual misconduct committed against a 14[-]year old female by
      Dougalewicz. This officer has statements from two eyewitnesses
      to the alleged misconduct that are detailed and graphic. The
      statements suggest sexual activity between Dougalewicz and the
      14[-]year old female since June of 2008. The witnesses related
      to this officer that many text messages exchanged between
      Dougalewicz and the 14[-]year[-]old female were of a sexual
      nature. The witnesses also related to this officer that the 14
      year old had sent nude pictures of herself to Dougalewicz at his
      request. Based on the information contained in the written
      statements by the witnesses and the verbal conversations with
      this officer, I am requesting a Search Warrant to obtain all text
      messages and picture mail in regards to the above mentioned
      phone numbers.

Affidavit, 3/26/09, at 1. That same date, the MDJ approved the Application

and issued the Search Warrant.

      The Search Warrant was served upon each carrier in Kansas.2 Sprint

complied with the Search Warrant. Verizon requested that a new warrant,

naming the carrier as “Cellco Partnership d/b/a/ Verizon Wireless,” be

issued.   Officer Mrozek filed a second Application for Search Warrant with




2
  Sprint maintained a principal office in Kansas.   Verizon stored electronic
communications in Kansas.


                                  -5-
J-A27043-14


the change requested by Verizon, which the MDJ granted.        Verizon then

complied with the new search warrant.3

     Dougalewicz subsequently was charged with, inter alia, the above-

described charges at two docket numbers.      Dougalewicz filed an omnibus

pre-trial suppression Motion (“Suppression Motion”) on July 10, 2009. The

parties agreed to rely upon the preliminary hearing testimony to resolve the

Suppression Motion.    On June 23, 2010, the suppression court denied

Dougalewicz’s Omnibus Pretrial Motion.

     On June 7, 2012, Dougalewicz filed a supplemental suppression Motion

(“Supplemental Suppression Motion”).     The suppression court scheduled a

hearing on the Supplemental Suppression Motion.       It later cancelled the

hearing and directed the parties to file legal briefs. On February 13, 2013,

the suppression court denied the Supplemental Suppression Motion.

     After a consolidated bench trial on the charges at both docket

numbers, the trial court convicted Dougalewicz of the above-described

charges.   At docket number C.R. 514 of 2009, the trial court sentenced

Dougalewicz to a prison term of three to ten years for his conviction of

aggravated indecent assault, and to no further sentence for his conviction of

indecent assault.4   At docket number C.R. 1129 of 2009, the trial court


3
 The Sprint Search Warrant and the Verizon Search Warrant are hereinafter
collectively referred to as “the Search Warrants.”
4
  The trial court granted Dougalewicz’s Motion for Judgment of Acquittal as
to a corruption of minors charge.


                                 -6-
J-A27043-14


imposed a consecutive sentence of nine months to seven years in prison for

Dougalewicz’s conviction of sexual abuse of a child—possession of child

pornography.     For his conviction of corruption of minors, the trial court

sentenced Dougalewicz to a consecutive prison term of three months to one

year. Dougalewicz filed post-sentence Motions, which the trial court denied.

Thereafter, Dougalewicz filed a Notice of Appeal, followed by a timely

Concise Statement of Matters Complained of on Appeal, pursuant to

Pa.R.A.P. 1925(b).

      On appeal, Dougalewicz presents the following claims for our review:

      I.     When stored electronic communications were obtained
             unlawfully under both Federal and State law, did the
             [suppression c]ourt commit error when it ruled that[,]
             even assuming that the communications had not been
             lawfully seized, no suppression should be granted unless
             specifically authorized by statute?

      II.    Does a Pennsylvania [MDJ] have authority or jurisdiction to
             issue a search warrant ordering the seizure of evidence
             located in the state of Kansas; and did the [suppression
             court] commit error in not suppressing evidence seized in
             the state of Kansas pursuant to a search warrant issued by
             a Pennsylvania [MDJ]?

      III.   Did the [suppression c]ourt commit error in refusing to
             suppress, as overly broad and insufficiently specific, a
             search warrant that ordered the seizure of all phone
             records belonging to a person’s phone number, without
             limit as to time or content?

      IV.    Did the [suppression c]ourt commit error in failing to
             suppress the information seized from [] Dougalewicz’s cell
             phone carrier pursuant to a search warrant that was not
             supported by an adequate Affidavit of Probable Cause?

Brief for Appellant at 5.


                                  -7-
J-A27043-14


      In reviewing the trial court’s suppression ruling, we are guided by the

following principles:

      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
      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. Johnson, 33 A.3d 122, 125-26 (Pa. Super. 2011)

(internal quotation marks, citations and footnote omitted).

      Dougalewicz first claims that the suppression court erred when it

refused to suppress the evidence seized as a result of the Search Warrants.

Brief for Appellant at 12.   Dougalewicz argues that, under the relevant

version of the United States Stored Communications Act (“SCA”), 18

U.S.C.A. §§ 2701-2712, a Pennsylvania MDJ is not authorized to issue a

search warrant for stored electronic communications located outside of the

Commonwealth. Brief for Appellant at 13-14. Citing 18 U.S.C.A. § 2703(d),

Dougalewicz contends that only a “court of competent jurisdiction” could

issue a search warrant for stored electronic communications.        Brief for

Appellant at 14. Dougalewicz points out that in 2009, a “court of competent

jurisdiction” was defined by statute as “a court of general criminal

jurisdiction of a State authorized by the law of that State to enter



                                 -8-
J-A27043-14


orders authorizing the use of a pen register or trap or trace device.”

Brief for Appellant at 14 (emphasis added) (quoting 18 U.S.C.A. § 3127(b)

(2009)).     Dougalewicz asserts that the evidence seized pursuant to the

Search Warrants must be suppressed because at that time, the Pennsylvania

MDJ was not authorized, under the SCA, to issue the Search Warrants. Id.

at 17.

         Dougalewicz further argues that under Pennsylvania’s Stored Wire and

Electronic Communications and Transactional Records Access Act (“the

Pennsylvania Act”), 18 Pa.C.S.A. §§ 5741 et seq., any search warrant for the

contents of stored electronic communications must be issued by a “Court.”

Brief for Appellant at 15 (citing 18 P.S. § 5743(d)).           According to

Dougalewicz, the Pennsylvania Act defines a “Court” as “the Superior Court”

except, under subchapter C, the term refers to “the Court of Common

Pleas.” Id. at 15 (citation omitted). Dougalewicz asserts that because the

MDJ had no authority to issue the Search Warrants, the suppression court

erred in not suppressing the evidence seized as a result of the Search

Warrants. Id. at 15, 17.

         The primary objective of the Fourth Amendment to the United States

Constitution is the protection of privacy. See Warden v. Hayden, 387 U.S.

294, 304 (1967) (stating that the “principal object of the Fourth Amendment

is the protection of privacy”). However, “embodied in Article I, Section 8 [of

the Pennsylvania Constitution] is a strong notion of privacy, which is greater



                                   -9-
J-A27043-14


than that of the Fourth Amendment.”       Commonwealth v. Waltson, 724

A.2d 289, 292 (Pa. 1998).

      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.

See Commonwealth v. Anderson, 40 A.3d 1245, 1249 (Pa. Super. 2012).

“[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.”

Commonwealth v. Gary, 91 A.3d 102, 107 (Pa. 2014).

      While the Fourth Amendment does not contain an express mandate

that evidence seized as a result of an illegal search must be suppressed,

“[t]he [exclusionary] rule [] operates as a judicially created remedy

designed to safeguard Fourth Amendment rights generally through its

deterrent effect, rather than a personal constitutional right of the party

aggrieved.” U.S. v. Leon, 468 U.S. 897, 906 (1974) (citation and internal

quotation marks omitted). The remedy of suppression is a creature of the

statute, and, “[t]he availability of the suppression remedy for … statutory, as

opposed to constitutional, violations … turns on the provisions of [the

statute] rather than the judicially fashioned exclusionary rule aimed at

deterring violations of Fourth Amendment rights.”      U.S. v. Donovan, 42




                                 - 10 -
J-A27043-14


U.S. 413, 432 n.22 (1977). It is in this context that we review the statutory

language at issue.5

        The Electronic Communications Privacy Act (“ECPA”), Pub. L. No. 99-

508, 100 Stat. 1848, amended the federal Wiretap Act, 6 to “address[] the

interception of … electronic communications.”       S. Rep. No. 99-541, at 3

(1986). Title II of the ECPA created the SCA, 18 U.S.C.A. §§ 2701-2018,

which was designed to “address[] access to stored wire and electronic

communications and transactional records.” Id.

        At the time the Search Warrants were issued, the SCA provided, in

relevant part, as follows:

        (a) Contents of wire or electronic communications in electronic
        storage. A governmental entity may require the disclosure by a
        provider of electronic communication service of the contents of a
        wire or electronic communication, that is in electronic storage in
        an electronic communications system for one hundred and
        eighty days or less, only pursuant to a warrant issued using the
        procedures described in the Federal Rules of Criminal Procedure
        by a court with jurisdiction over the offense under investigation
        or equivalent State warrant….

        (b) Contents of wire or electronic communications in a remote
        computing service.

          (1) A governmental entity may require a provider of remote
          computing service to disclose the contents of any wire or
          electronic communication to which this paragraph is made
          applicable by paragraph (2) of this subsection—


5
  As the proper interpretation of a statute is a pure question of law, our
standard of review is de novo and our scope of review is plenary.
Commonwealth v. Daniels, 963 A.2d 409, 417 (Pa. 2009).
6
    18 U.S.C.A. §§ 2510 et seq.


                                   - 11 -
J-A27043-14



          (A) without required notice to the subscriber or customer, if
          the governmental entity obtains a warrant issued using the
          procedures described in the Federal Rules of Criminal
          Procedure by a court with jurisdiction over the offense
          under investigation or equivalent State warrant[.]

          …


     (c) Records concerning electronic communication service or
     remote computing service.

        (1) A governmental entity may require a provider of electronic
        communication service or remote computing service to
        disclose a record or other information pertaining to a
        subscriber to or customer of such service (not including the
        contents of communications) only when the governmental
        entity—

          (A) obtains a warrant issued using the procedures described
          in the Federal Rules of Criminal Procedure by a court with
          jurisdiction over the offense under investigation or
          equivalent State warrant[.]

        (d) Requirements for court order.         A court order for
        disclosure under subsection … (c) may be issued by any
        court that is a court of competent jurisdiction and shall
        issue only if the governmental entity offers specific and
        articulable facts showing that there are reasonable grounds to
        believe that the contents of a wire or electronic
        communication, or the records or other information sought,
        are relevant and material to an ongoing criminal investigation.
        In the case of a State governmental authority, such a
        court order shall not issue if prohibited by the law of
        such State. …

18 U.S.C.A. § 2703(a)-(d) (2009) (emphasis added).

     At the time the Search Warrants were issued, the term “court of

competent jurisdiction” was defined in the SCA as having “the meaning

assigned by [18 U.S.C.A. §] 3127, and includes any Federal court within that


                                - 12 -
J-A27043-14


definition, without geographic limitation[.]”    18 U.S.C.A. § 2711.       Section

3127 defined a “court of competent jurisdiction,” in relevant part, as “a

court of general criminal jurisdiction of a State authorized by the law

of that State to enter orders authorizing the use of a pen register or

a trap and trace device[.]” 18 U.S.C.A. § 3127(2)(B) (emphasis added).

      In Pennsylvania, at the relevant time, only a judge of the Pennsylvania

Superior Court could authorize the use of a pen register or trap and trace

device.    See 18 Pa.C.S.A. § 2702 (2009) (defining the term “judge” as,

“[w]hen referring to a judge authorized to receive applications for, and to

enter,    orders   authorizing   interceptions   of   wire,   electronic   or   oral

communications pursuant to Subchapter B (relating to wire, electronic or

oral communication), any judge of the Superior Court.”).            Therefore, to

comply with federal law in 2009, a search warrant for stored electronic

communications must be issued by a judge of the Pennsylvania Superior

Court.

      Similarly, section 5743(d) of the Pennsylvania Act provided that a

search warrant for the contents of stored electronic communications must be

issued by a “Court.” 18 Pa.C.S.A. § 5743(d) (2009). The Pennsylvania Act

defined a “Court” as “[t]he Superior Court. For the purposes of Subchapter

C only, the term shall mean the court of common pleas.”              18 Pa.C.S.A.

§ 5702 (2009).     Accordingly, under the Pennsylvania Act, the MDJ in the




                                   - 13 -
J-A27043-14


instant case lacked the authority to issue the Search Warrants.             However,

our analysis does not end at this point.

      In its February 14, 2013 Opinion, the suppression court concluded that

the SCA “does not provide for a suppression remedy” even if Dougalewicz is

correct.   Suppression Court Opinion, 2/14/13, at 5.              In so holding, the

suppression court relied upon 18 U.S.C.A. § 2708, which states that “[t]he

remedies and sanctions described in this chapter are the only judicial

remedies and sanctions for nonconstitutional violations of this chapter.” 18

U.S.C.A. § 2708; see also Suppression Court Opinion, 2/14/13, at 5.               We

agree.

      Contrary to Dougalewicz’s arguments, the SCA did not provide for the

exclusion from evidence of electronic communications that were unlawfully

accessed. Rather, the SCA provided civil damages and criminal punishment

as remedies for its violation.      See 18 U.S.C.A. § 2707(b) (2009) (listing

“appropriate relief” as “equitable or declaratory relief,” “damages,” and

“reasonable   attorney’s   fee[s]    and     other   litigation    costs   reasonably

incurred”); id. § 2708 (providing that the sanctions described in that chapter

are the only judicial remedies and sanctions for nonconstitutional violations

of the statute).   We decline to apply the exclusionary rule for a statutory

violation, when Congress has not provided for such remedy.

      For the same reason, we are unable to afford relief to Dougalewicz

under the Pennsylvania Act.      At the relevant time, Section 5748 of the



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Pennsylvania Act provided that “[t]he remedies and sanctions described in

this   subchapter   are    the   only   judicial   remedies    and   sanctions   for

nonconstitutional violations of this subchapter.”             18 Pa.C.S.A. § 5748

(2009). Regardless of whether an MDJ had the authority to issue a warrant

for the search and seizure of electronic communications, the Pennsylvania

legislature   excluded    suppression   as   a     remedy   for   non-constitutional

violations of the Pennsylvania Act.7

       Because neither the relevant federal nor state statutes provided for

the exclusion of evidence upon a non-constitutional violation of their

respective provisions, the suppression court properly denied Dougalewicz’s

Supplemental Suppression Motion. We therefore cannot grant Dougalewicz

the relief requested.

       In his second claim, Dougalewicz argues that a Pennsylvania MDJ has

no jurisdiction to seize evidence located in Kansas, and therefore, the

evidence should have been suppressed.                Brief for Appellant at 21.

Dougalewicz contends that a Pennsylvania court’s jurisdiction is conferred by

Judicial Code sections 5503 and 5504, which grant jurisdiction over chattels

and documents (respectively), located only within Pennsylvania.            Brief for

Appellant at 21.    According to Dougalewicz, “[t]here is no legal authority

granted to a Court in the Commonwealth of Pennsylvania to order the

7
  We observe that Dougalewicz’s claim does not implicate his constitutional
rights. See Gary, 91 A.3d at 107 (providing that for a search to be
reasonable under the federal or state constitutions, the warrant must be
issued by an independent judicial officer).


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J-A27043-14


production of a witness or evidence located in another state.” Id. Further,

relying upon Pa.R.Crim.P. 200, Dougalewicz asserts that a search warrant

could be issued only by the issuing authority within the judicial district where

the subject of the warrant is located. Brief for Appellant at 21. In support,

Dougalewicz directs our attention to cases not involving the search of

electronic or stored electronic communications. Id. at 24.

      As set forth supra, the search of electronic and stored communications

is expressly governed by the above-referenced federal and state statutes.

Those statutes do not afford suppression as a remedy for nonconstitutional

violations of their respective provisions. For the same reasons as those cited

above, we cannot grant Dougalewicz relief on this claim.

      In his third claim of error, Dougalewicz argues that the suppression

court improperly failed to suppress the evidence seized pursuant to the

Search Warrants, as they were overbroad and insufficiently specific.       Brief

for Appellant at 25. Dougalewicz contends that the Search Warrants failed

to limit the time or content of the phone records to be searched and seized.

Id.   Therefore, Dougalewicz asserts, the intrusion into his privacy was “as

broad and as far reaching as possible.” Id.

      As this Court has explained,

      It is a fundamental rule of law that a warrant must name or
      describe with particularity the property to be seized and the
      person or place to be searched…. The particularity requirement
      prohibits a warrant that is not particular enough and a warrant
      that is overbroad. These are two separate, though related,
      issues. A warrant unconstitutional for its lack of particularity


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     authorizes a search in terms so ambiguous as to allow the
     executing officers to pick and choose among an individual’s
     possessions to find which items to seize. This will result in the
     general “rummaging” banned by the [F]ourth [A]mendment. A
     warrant unconstitutional for its overbreadth authorizes in clear or
     specific terms the seizure of an entire set of items, or
     documents, many of which will prove unrelated to the crime
     under investigation…. An overbroad warrant is unconstitutional
     because it authorizes a general search and seizure.

      …

            The language of the Pennsylvania Constitution requires
     that a warrant describe the items to be seized “as nearly as may
     be ....” The clear meaning of the language is that a warrant
     must describe the items as specifically as is reasonably possible.
     This requirement is more stringent than that of the Fourth
     Amendment, which merely requires particularity in the
     description. The Pennsylvania Constitution further requires the
     description to be as particular as is reasonably possible ....
     Consequently, in any assessment of the validity of the
     description contained in a warrant, a court must initially
     determine for what items probable cause existed.              The
     sufficiency of the description 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 and the description in the warrant requires
     suppression. An unreasonable discrepancy reveals that the
     description was not as specific as was reasonably possible.

Commonwealth v. Orie, 88 A.3d 983, 1002-03 (Pa. Super. 2014) (quoting

Commonwealth v. Rivera, 816 A.2d 282, 290-91 (Pa. Super. 2003)

(citations omitted)).   Because the particularity requirement in Article I,

Section 8 is more stringent than in the Fourth Amendment, if the warrant is

satisfactory under the Pennsylvania Constitution it will also be satisfactory

under the federal Constitution. Orie, 88 A.3d at 1003.




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      “[T]he Pennsylvania Supreme Court has instructed that search

warrants should be read in a common sense fashion and should not be

invalidated by hyper-technical interpretations. This may mean, for instance,

that when an exact description of a particular item is not possible, a generic

description will suffice.” Id. (internal quotation marks and citation omitted).

      As the suppression court stated in its Opinion,

            [a]n inspection of the [A]ffidavit [of Probable Cause]
      reveals that, contrary to [Dougalewicz’s] assertions, records are
      requested for the period of June 2008 to April 1, 2009, the date
      that the [A]ffidavit was signed. As a result, [the suppression
      c]ourt finds [Dougalewicz’s] argument regarding the breadth of
      Officer Mrozek’s request to be without merit.

Suppression Court Opinion, 6/23/10, at 9. This finding is supported in the

record, and the suppression court’s legal conclusion is sound. See id.

      Our review further discloses no merit to Dougalewicz’s claim that the

Search Warrants were not limited as to content. Contrary to Dougalewicz’s

assertion, the Search Warrants sufficiently identified and limited the items to

be searched and seized as text messages, phone calls and picture mail from

and to the Verizon and Sprint phones, “in regards to alleged sexual

misconduct with a fourteen year old female by Dougalewicz.”        Application,

3/24/09, at 1. Accordingly, we discern no error or abuse of discretion by the

suppression court in denying Dougalewicz relief on this claim.

      In his final claim of error, Dougalewicz argues that the Search

Warrants presented to the carriers were not supported by probable cause.

Brief for Appellant at 29.   In particular, Dougalewicz asserts that Officer


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Mrozek’s Affidavit failed to name the persons providing information to the

officer; the Affidavit did not identify the source of the information from which

the informants obtained their information; the Affidavit failed to state to

whom the identified telephone numbers belong or why a search of the

records of those phone numbers would lead to evidence of a crime; and that

the bulk of the Affidavit contained conclusions, and not supporting facts that

would establish probable cause. Id. at 30.

      In its Opinion, the suppression court addressed these claims as

follows:

      The [A]ffidavits indicate that Officer Mrozek received detailed
      and graphic written statements from two eyewitnesses to the
      alleged misconduct.      The [A]ffidavits also state that the
      eyewitnesses had verbal conversations with Officer Mrozek,
      suggesting that the officer knows the identity of the
      eyewitnesses.     An issuing authority may presume that the
      identified eyewitnesses to the alleged crime are reliable.
      Commonwealth v. Walston, 703 A.2d 518, 522 (Pa. Super.
      1997). The fact that the witnesses observed and gave detailed
      statements of the alleged misconduct all suggests that the
      eyewitnesses had a factual basis for their reports. As a result,
      the [A]ffidavits contained sufficient information concerning the
      knowledge and reliability of the eyewitnesses.

Suppression Court Opinion, 6/23/10, at 9-10.          The suppression court’s

findings are supported in the record, and its legal conclusions are sound.

Accordingly, we affirm on the basis of the suppression court’s above-stated

rationale with regard to this claim. See id.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/30/2015




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