J. S42039/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   v.                    :
                                         :
JAMES FRANKLIN SELLARD,                  :         No. 2026 MDA 2016
                                         :
                           Appellant     :


              Appeal from the PCRA Order, November 15, 2016,
              in the Court of Common Pleas of Lancaster County
               Criminal Division at No. CP-36-CR-0004518-2013


BEFORE: OLSON, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED SEPTEMBER 19, 2017

      James Franklin Sellard appeals from the November 15, 2016 order

denying his petition filed pursuant to the Post-Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

      The PCRA court summarized the relevant facts and procedural history

of this case 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 owned by Comcast Cable Communications.
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                 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.

                 The court order was granted on April 11, 2013,
           based on the procedures set forth in Section 5743 of
           Pennsylvania’s     Stored    Wire   and    Electronic
           Communications and Transactional Records Access
           Act (“Stored Wire Act”), 18 Pa.C.S.A. §§ 5741-
           5749.[1] Comcast disclosed to the Commonwealth
           that the IP address in question belonged to
           [appellant] at an address of 76 Roosevelt Boulevard,
           Unit 101, Manheim Township, Lancaster County.
           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
           [appellant’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.

                 A forensic examination was conducted by
           Detective John Duby, a Lancaster County Computer
           Forensic expert, on [appellant’s] computer and the
           external hard drives seized from his apartment. The
           examination resulted in the identification of
           14 suspected child pornography images depicting
           children under the age of 18 engaging in prohibited
           sexual acts, and 13 suspected child pornography
           videos depicting children under the age of 18
           engaging in prohibited sexual acts.


1
  This Act is located in subchapter C of the Pennsylvania Wiretapping and
Electronic Surveillance Control statute (“Pennsylvania Wiretap Act”),
18 Pa.C.S.A. §§ 5701-5782.


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                As a result of this police investigation, on
          September 12, 2013, [appellant] was charged with
          two counts of sexual abuse of children, possession of
          child pornography, 18 Pa.C.S.A. § 6312(d)(1).
          [Appellant] 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, [appellant’s]
          motion to suppress was denied, as [the trial court]
          found that the IP subscriber name and address
          obtained via a court order were not “content” for
          purposes of 18 Pa.C.S.A. § 5743(b) and, therefore,
          notice to [appellant] was not required. As such
          information constituted non-content “records,” [the
          trial court] held that Section 5743(c) controlled, and
          that the procedural protections provided for in that
          Section were followed in this case.

                 After a waiver of his right to a jury trial,
          [appellant] proceeded to a bench trial on August 1,
          2014.     At the conclusion, [appellant] 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
          [appellant] 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, [appellant] was ordered to
          undergo an assessment by the Pennsylvania Sexual
          Offender Assessment Board (SOAB). A hearing was
          held on October 27, 2014, to determine if [appellant]
          qualified as a sexually violent predator (SVP) under


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              the Sex Offender Registration and Notification Act
              (SORNA), 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 that
              [appellant] met the criteria to be classified as an SVP
              under the Act. At the conclusion of the hearing, [the
              trial court] found [appellant] to be an SVP and
              immediately sentenced him to two concurrent
              sentences of life in prison pursuant to 42 Pa.C.S.A.
              § 9718.2.

PCRA court opinion, 11/15/16 at 1-4 (some citations and footnotes omitted).

         On November 26, 2014, appellant filed a timely notice of appeal. On

August 28, 2015, a panel of this court quashed appellant’s appeal and

appellant did not file a petition for allowance of appeal with our supreme

court.    See Commonwealth v. Sellard, 131 A.3d 106 (Pa.Super. 2015)

(unpublished memorandum).         On September 17, 2015, appellant filed a

timely     pro   se   PCRA    petition2    and   Dennis   C.   Dougherty,   Esq.

(“PCRA counsel”), was appointed to represent him on September 24, 2015.

On January 28, 2016, PCRA counsel filed an amended petition on appellant’s

behalf. On May 3, 2016, the PCRA court conducted an evidentiary hearing

on the issues raised in appellant’s amended PCRA petition. Appellant’s trial

counsel, Jeffrey A. Conrad, Esq. (hereinafter, “trial counsel”), and direct



2
   The record reflects that appellant’s pro se PCRA petition was docketed on
September 22, 2015. Under the prisoner mailbox rule, however, appellant’s
petition is deemed filed on the date of mailing, September 17, 2015. See
Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa.Super. 2011)
(stating, “[u]nder the prisoner mailbox rule, we deem a pro se document
filed on the date it is placed in the hands of prison authorities for
mailing[]”(citation omitted)).


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appeal counsel, James J. Karl, Esq. (hereinafter, “appellate counsel”),

testified at this hearing. On November 15, 2016, the PCRA court entered an

order denying appellant’s amended PCRA petition.          This timely appeal

followed.3

      Appellant raises the following issues for our review:

             1.     DID THE PCRA COURT ERR WHEN IT DENIED
                    [APPELLANT’S]   PETITION    FOR    POST
                    CONVICTION RELIEF WHEN IT FOUND THAT
                    TRIAL   COUNSEL    PROVIDED   EFFECTIVE
                    ASSISTANCE WHEN COUNSEL FAILED TO
                    RAISE AND PRESERVE THE ISSUE OF
                    OVERBREADTH OF THE COURT ORDER
                    LANGUAGE AT [APPELLANT’S] SUPPRESSION
                    HEARING AND IN HIS BRIEF TO THE TRIAL
                    COURT?

             II.    DID THE PCRA COURT ERR WHEN IT FOUND
                    THAT [APPELLANT] FAILED TO PROVE THAT AN
                    ALTERNATIVE     NOT      CHOSEN,    “THE
                    OVERBREADTH      ISSUE,”    OFFERED    A
                    POTENTIAL FOR SUCCESS SUBSTANTIALLY
                    GREATER THAN THE COURSE PURSUED, THE
                    “CONTENT” ISSUE?

             III.   DID THE PCRA COURT ERR WHEN IT FOUND
                    THAT APPELLATE COUNSEL WAS EFFECTIVE
                    WHEN COUNSEL FAILED TO RAISE THE
                    INEFFECTIVENESS OF TRIAL COUNSEL WHO
                    FAILED TO RAISE AND PRESERVE THE
                    “OVERBREADTH” ISSUE?


3
   On December 12, 2016, the PCRA court entered an order directing
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 December 29, 2016, and the PCRA court filed a one-page
Rule 1925(a) opinion on January 3, 2017 wherein it indicates that it is
relying on its prior November 15, 2016 opinion dismissing appellant’s PCRA
petition.


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Appellant’s brief at 4-5.

      Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “This Court grants

great deference to the findings of the PCRA court, and we will not disturb

those findings merely because the record could support a contrary holding.”

Commonwealth v. Patterson, 143 A.3d 394, 397 (Pa.Super. 2016)

(citation omitted). In order to be eligible for PCRA relief, a defendant must

plead and prove by a preponderance of the evidence that his conviction or

sentence arose from one or more of the errors listed at 42 Pa.C.S.A.

§ 9543(a)(2). Further, these issues must be neither previously litigated nor

waived. 42 Pa.C.S.A. § 9543(a)(3).

      Appellant first contends that trial counsel was ineffective in failing to

argue at the July 18, 2014 suppression hearing that the language set forth

in the trial court’s April 11, 2013 order and application for court order was

overbroad. (Appellant’s brief at 15.) Appellant maintains that trial counsel’s

argument    “that   [appellant’s]   address,   name   and   other   subscriber

information was ‘content’ under [Section 5743(b)] . . . had almost no hope

of succeeding[,]” and that the PCRA court erred in concluding that the

“overbreadth” issue was devoid of merit. (Id. at 18-19.) For the following

reasons, we disagree.



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      To prevail on a claim of ineffective assistance of counsel under the

PCRA, a petitioner must plead and prove by a preponderance of the evidence

that counsel’s ineffectiveness “so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.”

42 Pa.C.S.A. § 9543(a)(2)(ii).     Specifically, a petitioner must establish the

following three factors:   “first[,] the underlying claim has arguable merit;

second, that counsel had no reasonable basis for his action or inaction; and

third, that Appellant was prejudiced.” Commonwealth v. Charleston, 94

A.3d 1012, 1020 (Pa.Super. 2014), appeal denied, 104 A.3d 523 (Pa.

2014) (citation omitted).     “A petitioner establishes prejudice when he

demonstrates that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.”   Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009)

(citations and internal quotation marks omitted).

      “[C]ounsel   is   presumed     to   be   effective   and   the   burden   of

demonstrating ineffectiveness rests on appellant.”          Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011), appeal denied, 30 A.3d

487 (Pa. 2011) (citation omitted). Additionally, we note that counsel cannot

be found ineffective for failing to raise a claim that is devoid of merit. See,

e.g., Commonwealth v. Ligons, 971 A.2d 1125, 1146 (Pa. 2009).

      Instantly, our review of the record reveals that trial counsel testified at

great length at the May 13, 2016 hearing with regard to the decision to limit



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his argument at the suppression hearing to whether appellant’s IP subscriber

name and address were “content” under Section 5743(b), or excluded under

Section 5743(c)(3) as non-content “records.”4


4
    Section 5743(b) provides as follows:

              (b) Contents of communications in a remote
              computing service.--

                    (1) Investigative or law enforcement
                    officers may require a provider of remote
                    computing service to disclose the
                    contents of any communication to which
                    this paragraph is made applicable by
                    paragraph (2):

                       (i) without required notice to the
                       subscriber or customer if the
                       investigative or law enforcement
                       officer obtains a warrant issued
                       under the Pennsylvania Rules of
                       Criminal Procedure; or

                       (ii) with prior notice from the
                       investigative or law enforcement
                       officer to the subscriber or
                       customer if the investigative or
                       law enforcement officer:

                           (A) uses an administrative
                           subpoena authorized by a
                           statute or a grand jury
                           subpoena; or

                           (B) obtains a court order
                           for the disclosure under
                           subsection (d);

                    except that delayed notice may be given
                    pursuant to section 5745 (relating to
                    delayed notice).


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     Specifically, trial counsel testified as follows:

           Q.     Okay. So that was essentially the argument
                  that was presented or focused down to at the
                  suppression hearing?

           A.     Correct, yes.

           Q.     Did you have a strategic reason for limiting
                  your argument to that?




                  (2) Paragraph (1) is applicable with
                  respect to a communication which is held
                  or maintained on that service:

                      (i) On behalf of and received by
                      means of electronic transmission
                      from, or created by means of
                      computer       processing      of
                      communications     received   by
                      means of electronic transmission
                      from, a subscriber or customer of
                      the remote computing service.

                      (ii) Solely for the purpose of
                      providing storage or computer
                      processing    services   to   the
                      subscriber or customer, if the
                      provider is not authorized to
                      access the contents of any such
                      communication for the purpose of
                      providing any services other than
                      storage or computer processing.

18 Pa.C.S.A. § 5743(b).

      Section 5743(c)(3), in turn, provides that “[a]n investigative or law
enforcement officer receiving records or information under paragraph (2) is
not required to provide notice to the customer or subscriber.” 18 Pa.C.S.A.
§ 5743(c)(3).


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            A.   The warrant itself, I -- both as a prosecutor
                 and as a defense attorney, I had worked with
                 Sergeant Kreider. When I was in the DA’s
                 Office, we called him Catfish because we did a
                 lot of undercover work together. So I knew
                 Sergeant Kreider very well. The quality of his
                 work, it’s a very high quality.

                 Detective Ortenzi also has a very good
                 reputation. Again, his work is high quality.

                 So I was trying to find an argument that I
                 thought I might have a chance with in this
                 case. And so I went very specific at that -- at
                 those provisions in the Wiretap Act because I
                 thought, given the nature of this case, the
                 [trial c]ourt wasn’t going to go for just
                 anything.

                 I was going to have to find something that had
                 teeth.    And so I thought that particular
                 argument had the best chance in this particular
                 case of getting the [trial c]ourt to listen and to
                 go with.

                 So I made it very specific as to the provisions
                 that they had failed to do in the order.

Notes of testimony, 5/13/16 at 13-15.

     Trial counsel further testified that he did not believe the “overbreadth”

argument by itself presented appellant with his best chance of success at the

suppression hearing and it was in appellant’s best interest to focus his

argument:

            Q.   Okay. Is there any specific reason you didn’t
                 argue that the Court Order was too vague at
                 the suppression hearing?

            A.   Well, I think what we then argued in the
                 memorandum of law flows out of it. So I can’t


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                   say there was any reason why just in -- I can
                   only say that I have known Judge Ashworth for
                   16 years, and I knew how to focus my
                   argument.

                   So at the suppression hearing, that’s where I
                   thought I had the best chance of getting the
                   [trial c]ourt to go.

                   So I argued and we narrowed it down to the
                   content, which is what the argument
                   essentially was. The vagueness flowed out of
                   it.  I did argue that in the memorandum
                   because it flows out of that argument, but I
                   don’t think we brought it up during the
                   hearing.

Id. at 15.

      On cross-examination, trial counsel reiterated that he has worked on

at least 50 sex crime and child pornography cases in his capacity as both a

former assistant district attorney and defense attorney, and that in his

opinion, “we advanced the strongest arguments that [appellant] had in the

suppression motion, at the motion [hearing], and then following up with the

memorandum of law.” (Id. at 17, 20-21.)

      “[G]enerally, where matters of strategy and tactics are concerned,

counsel’s assistance is deemed constitutionally effective if he chose a

particular course that had some reasonable basis designed to effectuate his

client’s interests.”   Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa.

2012). “If counsel’s chosen course had some reasonable basis, the inquiry

ends and counsel’s assistance is deemed effective.”    Commonwealth v.

Williams, 899 A.2d 1060, 1064 (Pa. 2006).      Based on the foregoing, we


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find that trial counsel had a reasonable strategic basis for electing to focus

his argument on the “content” issue rather than arguing that the language in

the trial court’s April 11, 2013 order was overbroad. Accordingly, appellant

has failed to satisfy the second prong of the ineffectiveness test and his

claim must fail. See Charleston, 94 A.3d at 1020.

      Moreover, our review indicates that even if trial counsel had elected to

pursue the “overbreadth” argument, appellant has failed to prove, by a

preponderance of the evidence, that but for trial counsel’s ineffectiveness,

“the result of the proceeding would have been different.”     See Johnson,

966 A.2d at 533.     The PCRA court authored a comprehensive, 18-page

opinion wherein it found that appellant’s assertion that the “overbreadth”

argument constituted “a legitimate and viable issue was not supported by

the case law or the facts in this case.” (PCRA court opinion, 11/15/16 at 11

(internal quotation marks omitted).) The PCRA court further concluded that

the April 11, 2013 court order in question comported with the requirements

set forth in Section 5743(d) of the Pennsylvania Stored Wire Act and was

neither vague nor overbroad. (Id. at 11.) Contrary to appellant’s claim, we

discern no error on the part of the PCRA court in reaching these conclusions

and adopt that portion of its opinion addressing this issue.     (See id. at

11-15; see also appellant’s brief at 17-21.)

      In his final claim, appellant contends that appellate counsel was

ineffective in failing to argue on direct appeal that trial counsel was



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ineffective for not preserving the “overbreadth” issue. (Appellant’s brief at

22-25.)

      Upon review, we find that appellant’s claim of appellate counsel’s

ineffectiveness warrants no relief. It is well established that ineffectiveness

claims cannot be raised on direct appeal and must be deferred until

collateral review. See Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa.

2013) (reaffirming the general rule first set forth in Commonwealth v.

Grant, 813 A.2d 726 (Pa. 2002), that “claims of ineffective assistance of

counsel are to be deferred to PCRA review[.]”).5 Notably, appellate counsel

acknowledged as much at the May 13, 2016 PCRA hearing, stating as

follows:

            Q.    Okay.     And you also asserted or you also
                  testified that you did not assert that [trial
                  counsel] was ineffective for failing to preserve
                  issues because, based on your review of the
                  record, you, in fact, believe that he had raised
                  those issues?

            A.    Correct.    And well, you really can’t assert
                  ineffectiveness claims on direct appeal in
                  Pennsylvania.

5
  We note that our supreme court recognized two exceptions to this general
rule in Holmes, but neither is applicable in this case. Specifically, the
Holmes court limited those exceptions to the following: (1) where the trial
court determines that a claim of ineffectiveness is “both meritorious and
apparent from the record so that immediate consideration and relief is
warranted[;]” or (2) where the trial court finds “good cause” for unitary
review, and the defendant makes a “knowing and express waiver of his
entitlement to seek PCRA review from his conviction and sentence, including
an express recognition that the waiver subjects further collateral review to
the time and serial petition restrictions of the PCRA.” Holmes, 79 A.3d at
577 (footnote omitted).


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Notes of testimony, 5/13/16 at 28.

      Furthermore, as discussed, appellant has failed to demonstrate that

the underlying claim of trial counsel’s purported ineffectiveness was

of arguable merit. Thus, appellate counsel cannot be found ineffective in

failing to pursue this claim on direct appeal. See, e.g., Commonwealth v.

Burkett, 5 A.3d 1260, 1270 (Pa.Super. 2010) (a determination that trial

counsel rendered ineffective assistance is a prerequisite to finding that any

subsequent counsel was himself ineffective); see also Commonwealth v.

Hall, 867 A.2d 619, 632 (Pa.Super. 2005) (holding that counsel cannot be

found ineffective for failing to raise a claim that is devoid of merit), appeal

denied, 895 A.2d 549 (Pa. 2006).              Accordingly, for all the foregoing

reasons, we conclude that appellant’s claim that appellate counsel was

ineffective must also fail.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/19/2017




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