J-S53013-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                  Appellee               :
                                         :
             v.                          :
                                         :
JAMES FRANKLIN SELLARD,                  :
                                         :
                  Appellant              :    No. 2041 MDA 2014

           Appeal from the Judgment of Sentence October 27, 2014,
                  Court of Common Pleas, Lancaster County,
              Criminal Division at No. CP-36-CR-0004518-2013

BEFORE: DONOHUE, OTT and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                          FILED AUGUST 28, 2015

      James Franklin Sellard (“Sellard”) appeals from the judgment of

sentence entered following his convictions of sexual abuse of children – child

pornography, 18 Pa.C.S.A. § 6312(d).         Following our review of Sellard’s

appellate brief and the certified record on appeal, we quash.

      The trial court summarized the facts underlying Sellard’s convictions as

follows:

             On April 4, 2013, Detective Bradley Ortenzi of the
             Ephrata Borough Police Department and a member
             of the Lancaster County Computer Crimes Task Force
             was performing a search of peer-to-peer (P2P)
             networks for individuals sharing child pornography.
             He located a computer willing to share files on the
             ARES network that contained suspected child
             pornography. This computer had an IP (Internet
             Protocol) address of 71.58.192.38 and an ARES
             nickname of pops1228@ARES associated with it.
             Detective Ortenzi learned that this IP address was
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          owned by Comcast Cable Communications. (See
          Trial Exhibit 9 at Stipulation 2.)

          Detective Ortenzi presented the partially downloaded
          file and the IP address to another detective assigned
          to the Lancaster County Computer Crimes Task
          Force, Detective Keith Neff. Detective Neff requested
          a court order containing a description of the partially
          downloaded file and requested (1) that Comcast
          Cable Communications disclose the subscriber
          information for the IP Address 71.58.192.38 and (2)
          that Comcast not disclose this request to the
          subscriber. (See Trial Exhibit 9 at Stipulation 3.)

          The court order was granted on April 11, 2013, and
          Comcast disclosed to the Commonwealth that the IP
          address in question belonged to [Sellard] at an
          address of 76 Roosevelt Boulevard, Unit 101,
          Manheim Township, Lancaster County. (See Trial
          Exhibit 9 at Stipulation 3.) Using the information
          from Comcast, Detective Keith R. Kreider of the
          Manheim Township Police Department, and a
          member of the Computer Crimes Task Force[,]
          obtained a search warrant for [Sellard’s] apartment
          on June 20, 2013. When the warrant was executed
          on June 20, 2013, the Commonwealth seized a Dell
          computer system, two external hard drives, and
          three damaged laptops. (See Trial Exhibit 9 at
          Stipulation 4.)

          A forensic examination was conducted by Detective
          John Duby, a Lancaster County Computer Forensic
          expert, on [Sellard’s] computer and the external
          hard drives seized from his apartment. The
          examination resulted in the identification of
          [fourteen] suspected child pornography images
          depicting children under the age of [eighteen]
          engaging in prohibited sexual acts, and [thirteen]
          suspected child pornography videos depicting
          children under the age of [eighteen] engaging in
          prohibited sexual acts. (See Trial Exhibit 9 at
          Stipulation 5; see also Commonwealth Trial Exhibits
          4-6.)



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          As a result of this police investigation, on September
          12, 2013, [Sellard] was charged with two counts of
          sexual abuse of children, possession of child
          pornography (F3) (18 Pa.C.S.A. § 6312(d)(1)).
          [Sellard] filed a suppression motion on April 23,
          2014, and a hearing was held on July 18, 2014.
          Thereafter, the parties filed briefs addressing the
          issues of whether notice is required by the
          government when the government obtains a court
          order for a defendant’s IP subscriber name and
          address and whether such subscriber information is
          “content” under 18 Pa.C.S.A. § 5743(b), or excluded
          under 18 Pa.C.S.A. § 5743(c)(3) as non-content
          “records[.]”

          By Order dated July 28, 2014, [Sellard’s] motion to
          suppress was denied, as this Court found that the IP
          subscriber name and address obtained via a court
          order dated April 11, 2013, were not “content” for
          purposes of 18 Pa.C.S.A. § 5743(b) and, therefore,
          notice to [Sellard] was not required. As such
          information constituted non-content “records,” [the
          trial court] held that 18 Pa.C.S.A. § 5743(c)
          controlled, and that the procedural protections
          provided for in § 5743(c) were followed in this case.

          After a waiver of his right to a jury trial, [Sellard]
          proceeded to a bench trial on August 1, 2014. At the
          conclusion, [Sellard] was found guilty of two counts
          of sexual abuse of children, child pornography.
          Pursuant    to   42    Pa.C.S.A.  §    9718.2,     the
          Commonwealth gave notice of its intent to seek a
          sentence of life imprisonment on the charges as
          [Sellard] had three prior convictions for indecent
          assault.

          Sentencing was deferred pending completion of a
          pre-sentence investigation report. Moreover, having
          been found guilty of two counts of sexual abuse of
          children, [Sellard] was ordered to undergo an
          assessment by the Pennsylvania Sexual Offender
          Assessment Board (SOAB).       See 42 Pa.C.S.A. §



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           9799.24(a) (“a court shall order an individual
           convicted of a sexually violent offense to be assessed
           by the board”);§ 9799.12 (defining “sexually violent
           offense”).

           A hearing was held on October 27, 2014, to
           determine if [Sellard] qualified as a sexually violent
           predator (SVP) under the Sex Offender Registration
           and Notification Act, 42 Pa.C.S.A. §§ 9799.10 --
           9799.41. Robert M. Stein, Ph.D., testified on behalf
           of the SOAB and expressed his expert opinion, within
           a reasonable degree of professional certainty, that
           [Sellard] met the criteria to be classified as an SVP
           under the Act. At the conclusion of the hearing, [the
           trial court] found [Sellard] to be a sexually violent
           predator and immediately sentenced [him] to two
           concurrent sentences of life in prison pursuant to
           42 Pa.C.S.A. § 9718.2. [Sellard] was represented
           during his trial and sentencing by private counsel,
           Jeffrey Conrad, Esquire.

           A timely notice of appeal was filed on November 26,
           2014, by James J. Karl, Chief Public Defender of
           Lancaster County. Pursuant to [the trial court’s]
           directive, [Sellard] furnished a concise statement of
           matters complained of on appeal which challenged
           only [the trial court’s] denial of his motion to
           suppress the information that police obtained from
           Comcast pursuant to a court order. (See Concise
           Statement at 1.)

Trial Court Opinion, 1/16/15, at 1-4 (footnotes omitted).

     As noted by the trial court, Sellard is challenging the denial of his

motion to suppress. He presents only the following issue for review: “Did

not the court err in denying [Sellard’s] motion to suppress evidence of the

contents of [Sellard’s] computer when the search was the illegal fruit of an

overly broad court order for disclosure under the statute set forth at




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[18] Pa.C.S.A. § 5743?” Sellard’s Brief at 4. Additionally, we note that in

setting forth his argument, Sellard states,

                  As articulated in the lower court, [Sellard’s]
            suppression claim had two alternative components:
            (1) a subscriber’s name and residence address
            constitute “content,[”] and the statute requires
            advance notice to the subscriber when the police are
            seeking an order to disclose “content”; or (2) even if
            a subscriber’s name and address must be
            characterized as “non-content,” the order does not
            properly delineate that it is being issued under the
            statutory subsections appropriate for “non-content”
            disclosure, and on that basis, is overly broad.

                 In this appeal, [Sellard] relies on the second
            component of the claim as set forth in the previous
            paragraph.

Id. at 12-13.

      The statement that Sellard’s suppression claim had two alternative

components is disingenuous, and there is no support for the statement that

Sellard sought suppression on the basis that the order was overly broad.

Sellard did not assert that the order was overly broad in his suppression

motion. At the suppression hearing, Sellard argued nearly exclusively that

the information Comcast provided to the police qualifies as “content” under

the relevant statute. At the very end of his argument Sellard stated, “just

as a backup argument[,]” that the order was unconstitutionally vague. N.T.,

7/18/14, at 12.1 Sellard did not assert, much less argue, that the order was



1
 This “backup argument” was limited to this bare assertion that the order
was unconstitutionally vague, i.e., no overbreadth argument was asserted.


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overbroad at that time. He did not discuss this alleged “component” of his

argument in the memorandum of law that he submitted to the court

following the conclusion of the hearing. Quite simply, Sellard did not raise

the claim that the order at issue was overly broad until after he filed the

present appeal.

      “It is axiomatic that an issue cannot be raised for the first time on

appeal.” Commonwealth v. Hankerson, __ A.3d ___, 2015 WL 3549969

at *4 (Pa. Super. June 8, 2015); see also Pa.R.A.P. 302(a). This Court has

long held that “issues, even those of constitutional dimension, are waived if

not raised in the trial court” and that “[a] new and different theory of relief

may   not   be    successfully   advanced   for   the   first   time   on   appeal.”

Commonwealth v. Santiago, 980 A.2d 659, 666 (Pa. Super. 2009)

(citations omitted).

            By requiring that an issue be considered waived if
            raised for the first time on appeal, our courts ensure
            that the trial court that initially hears a dispute has
            had an opportunity to consider the issue. This
            jurisprudential mandate is also grounded upon the
            principle that a trial court, like an administrative
            agency, must be given the opportunity to correct its
            errors as early as possible.

In re F.C. III, 2 A.3d 1201, 1212 (Pa. 2010) (internal citations omitted).

      As Sellard has waived the only issue he seeks to raise on appeal, we

quash this appeal.

      Appeal quashed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/28/2015




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