J-S67021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                                :           PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
    MATTHEW ALEXANDER BECKMAN                   :
                                                :
                       Appellant                :      No. 635 MDA 2019

       Appeal from the Judgment of Sentence Entered February 14, 2019
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0003365-2015


BEFORE:      OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.:                                  FILED JANUARY 08, 2020

        Appellant, Matthew Alexander Beckman, appeals from the February 14,

2019 Judgment of Sentence entered in the Berks County Court of Common

Pleas    following   his   conviction    of    three    counts   of   Dissemination   of

Photography/Film of Child Sex Acts, forty counts of Child Pornography, and

one count of Criminal Use of a Communication Facility.1 After careful review,

we affirm Appellant’s Judgment of Sentence.

        The relevant underlying facts are as follows. On June 3, 2015, Special

Agent Daniel Block, who was investigating the sharing of child pornography,

traveled to 17 Eshbach Lane, Bechtelsville, Pennsylvania, to execute a search

warrant. A resident of 17 Eshbach Lane permitted agents to connect a police

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S. §§ 6312(c), 6312(d), and 7512(a), respectively.
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computer device, also known as a Fluke, to her router and wireless connection

to determine whether any computers or devices had been connected to her

open wireless network. Walking along Eshbach Lane, Agent Justin Leri used

the device and found a signal strength outside of 15 Eschbach Lane, which is

located next to 17 Eshbach Lane. The signal indicated that a device inside of

15 Eshbach Lane was connected to the wireless connection originating at 17

Eshbach Lane. Agents found no other signal strengths on Eshbach Lane.

       15 Eshbach Lane is a duplex, with two white front doors, but only one

mailbox out front with the number “15” marked on it.[2]

       Agents knocked on the door on the left side of 15 Eshbach Lane, and

Appellant answered the door. Appellant informed the agents that only the left

side of the duplex was occupied. Appellant stated that he did not have direct

access to internet, but that he did have two devices, including a laptop, that

could connect to an open wireless network. He said that his family members

occasionally connected to an open signal that they could pick up in their house.

Agents asked Appellant if they could search the internet-capable devices that

Appellant mentioned and Appellant declined. Agents informed Appellant that

the investigation centered on child pornography and that they were obtaining

a warrant to search the premises. The agents then left Appellant’s residence.3

____________________________________________


2The United States Post Office has registered two separate addresses for 15
Eshbach Lane: “15A” and “15B.”

3 Shortly after the agents left, they observed that two devices disconnected
from the wireless network emanating from 17 Eshbach Lane.

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      Special Agent Joe Purfield spoke to Appellant’s wife outside the

residence. She related that her residence did not have internet access but

confirmed that she and her husband connect to the internet through their

neighbor’s open wireless network. She further related that her husband has

a laptop that he uses regularly.

      At approximately 2:45 p.m., agents obtained a search warrant for 15

Eshbach Lane. Immediately thereafter, they executed the search warrant,

recovering several hard drives and thumb drives, as well as a laptop with a

hard drive missing. The law enforcement agents recovered images and videos

of child pornography from a thumb drive and the hard drives.        They also

recovered from the hard drives chat messages between Appellant and his wife.

In those chat messages, Appellant and his wife engage in role play where he

expresses sexual interest in a minor and refers to his wife as little girl, and

she responds as if she were his daughter rather than his wife. The agents

seized all of these items from the left side of 15 Eshbach Lane, the same side

from which Appellant initially answered the door and spoke with the agents.

      The Commonwealth charged Appellant with the above crimes, and on

August 28, 2015, Appellant filed an Omnibus Pretrial Motion to suppress

evidence seized from his home, and testimony about allegedly privileged chat

messages between Appellant and his wife obtained from Appellant’s electronic

devices.   Appellant asserted in his Motion that the search warrant pursuant

to which the police searched his home and seized incriminating evidence was

“constitutionally defective [and had been] issued without probable cause.”

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Pretrial Motion, 8/28/15, at 1. In particular, Appellant complained that the

warrant was defectively overbroad because, while it lists the property to which

it applies as “15 Eshbach Lane, Bechtelsville, Washington Twp, Berks County,

PA 19505-9008 (left door only),” it failed to specifically limit the search of the

interior of the premises to the “left door” side of Eshbach Lane. Id. at 3.

Appellant also averred that the affidavit filed in support of the warrant

application was “so deficient, defective[,] and lacking that the magistrate who

signed the warrant could not possibly have fairly evaluated the existence of

probable cause.” Id. at 3.

       Further, Appellant asserted that the chat messages containing allegedly

“confidential statements and observations” made by his wife were privileged

pursuant to 42 Pa.C.S. § 5914.4 Id. at 1, 5.

       On October 13, 2015, the suppression court held a hearing on the

Motion.    At the hearing, the Commonwealth presented the testimony of

Special Agents Kurt Smith, Daniel Block, Justin Leri, and Joseph Purfield.

Appellant’s wife also testified.        Relevantly, Agent Block testified that the

agents made contact with Appellant on the left side of the duplex located at

15 Eshbach Lane and that the right side of the duplex is not habitable. N.T.,

10/13/15, at 22. Agent Block testified that Appellant informed him that 15

Eshbach Lane was only one residence. Id. He also testified that 15 Eshbach

Lane has one mailbox with the number “15” displayed on it. Id. at 22-23.
____________________________________________


4 42 Pa.C.S § 5914, “Confidential communications between spouses,” sets
forth the marital privilege.

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Agent Block testified that he applied for and executed the search warrant on

15 Eshbach Lane.      Id. at 24-25. He further testified that all of the items

seized from the residence originated in the left side of the duplex—the same

side of the residence from which Appellant answered the door. Id. at 27.

      Following the hearing, the suppression court denied Appellant’s Motion,

finding that the description of the location in the search warrant was

sufficiently specific and, therefore, not constitutionally overbroad.       With

respect to Appellant’s marital privilege claim, the court found it in the nature

of a Motion in Limine, and indicated that it would rule on it if Appellant raised

it as such at the time of trial.

      On February 5, 2018, the Commonwealth filed a Notice of Intent to

Introduce Chat Messages at Trial and Motion for Pre-Trial Ruling, seeking to

introduce as evidence transcripts of chat messages between Appellant and

wife. The Commonwealth represented that Special Agent Joseph Purfield had

found several pages of chat messages on Appellant’s electronic devices seized

pursuant to the June 18, 2015 search warrant.        Notice, 2/5/18, at ¶¶ 1-3.

The Commonwealth argued that the spousal privilege did not protect the chat

messages because Appellant’s wife would not be the person testifying as to

their contents. Id. at ¶ 6.

      On February 12, 2018, the trial court granted the Commonwealth’s

Motion, permitting the Commonwealth to introduce the chat messages and

testimony pertaining to them as evidence.




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      Appellant’s trial commenced on July 31, 2018. Relevant to the instant

appeal, the Commonwealth offered the testimony, over Appellant’s objection,

of Special Agent Purfield, an expert in computer forensic analysis, concerning

the content of chat messages between Appellant and his wife. N.T., 10/10/18,

at 508-23.

      On October 11, 2018, the jury convicted Appellant of the above crimes.

On February 14, 2019, the trial court sentenced Appellant to an aggregate

term of four to eleven years’ incarceration followed by twenty-one years of

probation.

      Appellant filed a Post-Sentence Motion to Modify Sentence. The court

held a hearing on the Motion, after which, on April 9, 2019, it modified

Appellant’s sentence as to the special conditions for sex offenders.

      This timely appeal followed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant raises the following two issues on appeal:

      1. Whether the [t]rial [c]ourt erred by denying Appellant’s
         Omnibus Pretrial Motion in that the evidence recovered as a
         result of the search warrant should have been suppressed
         because the warrant was invalid due to a lack of specificity?

      2. Whether the [t]rial [c]ourt erred by not precluding the
         admission of the chat logs between [Appellant] and [wife], who
         were husband and wife, under the spousal privilege [statutes,]
         Title 42, §[§] 5913 and 5914.

Appellant’s Brief at 64.

      In his first issue, Appellant claims that the trial court erred in denying

his Motion to Suppress because the warrant pursuant to which the police

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collected   incriminating   evidence   against    him   was    unconstitutionally

overbroad. Id. at 78. In particular, Appellant argues that the warrant was

faulty because it only “specified an entry point into the duplex but did not limit

the search of the interior.” Id. Appellant claims that because the police had

made contact with Appellant on the left side of the duplex, they lacked

probable cause to search the whole duplex. Id. at 79. To be clear, Appellant

does not allege that the police did, in fact, search or obtain evidence from

both sides of the duplex. He argues only that, because the warrant lacked

sufficient particularity, the police could have searched the entire duplex, which

rendered the search warrant overbroad.

      With respect to an appeal from the denial of a motion to suppress, our

Supreme Court has stated the following:

      Our standard of review over an order denying suppression
      requires us to consider only the Commonwealth’s evidence and so
      much of the defense's evidence as remains uncontradicted when
      read in the context of the suppression hearing record as a whole.
      Where the record supports the suppression court’s factual
      findings, we are bound by those facts and may reverse only if the
      legal conclusions drawn therefrom are in error. However, as here,
      where the appeal ... turns on allegations of legal error, the
      suppression court’s conclusions of law are not binding as it is this
      Court’s duty to determine if the suppression court properly applied
      the law to the facts. Therefore, the legal conclusions of the lower
      courts are subject to our plenary review.

Commonwealth v. Turpin, 216 A.3d 1055, 1060 (Pa. 2019) (citations and

internal quotation marks omitted).

      Further, Pa.R.Crim.P. 581, which addresses the suppression of

evidence, provides in relevant part as follows:

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      (H) The Commonwealth shall have the burden . . . of establishing
      that the challenged evidence was not obtained in violation of the
      defendant’s rights.

Pa.R.Crim.P. 581(H).

      A search warrant must name or particularly describe the place or person

to be searched. Pa.R.Crim.P. 205. “A search warrant directed against [a] . .

. multiple-occupancy structure will be held invalid for lack of specificity if it

fails to describe the particular room or subunit to be searched with sufficient

definiteness to preclude a search of other units.” Turpin, 216 A.3d at 1061

(emphasis removed and citation omitted).

      The particular description “must be as particular as reasonably

possible.”    Commonwealth v. Belenky, 777 A.2d 483, 486 (Pa. Super.

2001). Where there is a question as to the validity of a search warrant based

on the particularity of the place described, the question is whether the

description “affected probable cause or the ability to identify the premises to

be searched.” Id. at 487. In order to determine whether a search warrant

describes a place with sufficient particularity, the court should use a “practical

common-sense approach.” Commonwealth v. Carlisle, 534 A.2d 469, 472

(Pa. 1987).

      Instantly, the “specific description of premises to be searched” on the

search warrant acknowledges that the building is a duplex, with the black

number “15” on the white front door.           The search warrant specifically

authorizes police to search the premises located at the physical mailing

address “15 Eshbach Ln., Bechtelsville, Washington Twp, Berks County, PA


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19505-9008 (left door only).”            Application for Search Warrant and

Authorization, 6/18/15, at 1 (emphasis added). Additionally, the testimony

at the hearing on the Motion to Suppress revealed, and Appellant does not

dispute, that: (1) all of the communication between the police and Appellant

took place on the left side of the duplex; (2) the agents only searched the left

side of the duplex; (3) all of the seized evidence originated from the left side

of the duplex, and (4) Appellant represented that the duplex was one home.

      Applying the “practical, common-sense” approach, we conclude that the

trial court properly found that search warrant described the location with

sufficient particularity as to “preclude a search of other units.” See Turpin,

216 A.3d at 1061; Carlisle, 534 A.2d at 472. Thus, the trial court did not err

in finding that the search warrant was not constitutionally overbroad.

Appellant, is, therefore, not entitled to relief on this claim.

      In his second issue, Appellant claims that the trial court erred in granting

the Commonwealth’s Motion in Limine, which permitted the admission of the

chat message logs between Appellant and his wife and Special Agent Purfield’s

testimony about them.      Appellant’s Brief at 83-85.     Appellant argues that

these one-on-one communications between him and his wife are “precisely

the type of conversation that [42 Pa.C.S. § 5914] seeks to shield from public

perusal.” Id. at 83-84.

      In Pennsylvania, confidential marital communications are protected

from disclosure in criminal proceedings:

      § 5914. Confidential communications between spouses

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      Except as otherwise provided in this subchapter, in a criminal
      proceeding neither husband nor wife shall be competent or
      permitted to testify to confidential communications made by one
      to the other, unless this privilege is waived upon the trial.

42 Pa.C.S. § 5914 (emphasis added). This privilege prevents a spouse from

testifying against the defendant-spouse regarding “any communications which

were confidential when made and which were made during the marital

relationship.”   Commonwealth v. Davis, 121 A.3d 551, 556 (Pa. Super.

2015) (citation omitted).

      Relevantly, this Court has held that the Commonwealth may introduce

at trial correspondence from one spouse to another as long as the

Commonwealth did not obtain it from the spouse.          Commonwealth v.

Skibicki, 586 A.2d 446, 450 (Pa. Super. 1991).      Stated another way, the

Commonwealth is not precluded from introducing marital communications

provided by a third party. Id.

      In the instant case, the police discovered the chat messages between

Appellant and his wife while searching Appellant’s electronic devices pursuant

to a valid warrant. The Commonwealth then introduced the chat messages to

the jury by way of the testimony of Special Agent Purfield.      Because the

Commonwealth did not obtain the chat messages from Appellant’s wife and

did not introduce them into evidence through Appellant’s wife’s testimony, but

instead by a disinterested third person, Section 5914 does not protect as the

chat messages.     Accordingly, the trial court did not err in permitting the




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Commonwealth to introduce this evidence over Appellant’s objection, and

Appellant is not entitled to relief on this claim.5

       Judgment of Sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/08/2020




____________________________________________


5  To the extent that Appellant also alleges in his Statement of Questions
Involved that the trial court erred in permitting the Commonwealth to
introduce the chat messages pursuant to 42 Pa.C.S. § 5913, our review
indicates that he raised this issue for the first time in his Statement of
Questions Involved and does not provide any argument in support of this claim
in the Argument section of his Brief. Accordingly, we decline to address it.
See Pa.R.A.P. 302 (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.). Even if Appellant had raised
this issue before the trial court, his failure to develop it in his Brief, would
result in waiver. See Commonwealth v. Perez, 93 A.3d 829, 838 (Pa. 2014)
(reiterating that claims that an appellant fails to developed with argument or
citation to controlling authority are waived).

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