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[U] Commonwealth v. Dibiasi

Superior Court of Pennsylvania

February 7, 2014



Appeal from the Order November 20, 2012 in the Court of Common Pleas of Westmoreland County Criminal Division at No.: CP-65-CR-0001150-2006.

Joseph D. Seletyn, Esq.




Appellant, David Dibiasi, appeals from the Order of November 20, 2012, that denied, following a hearing, his first petition brought under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. For the reasons discussed below, we affirm.

The underlying facts in this matter are taken from this Court's June 3, 2011 memorandum on direct appeal.

In March of 2005, Rose Ferrante (then Rose Duda) lived with [ Appellant], her boyfriend of nine years; the two were co-owners of a pet store. Also living in the house was Rose's son, Jacob, who was fifteen-years-old [ sic] at the time. The house contained three computers: one in a room [ Appellant] used as an office, one in the living room, and one in Jacob's bedroom. Rose and Jacob testified that the computers in the office and living room had internet access, but the one in Jacob's room did not. They alleged that [ Appellant] was frequently in the office, where he would lock the door. They also both stated that they were not allowed to use the office computer and had never done so. Rose admitted she was not technologically savvy.
Rose described one occasion in 2005 when she went into the office and, after bumping into the computer's mouse, saw images displayed on the computer of children engaged in sexual acts. When she confronted [ Appellant], he responded that he did not know why such images would be on his computer, and later claim ed that his computer either had a virus or that since the computer was a node for KAZAA, a file sharing program, these files might have been put onto the computer by another KAZAA user.
Due to problem s in their relationship, Rose stated that [ Appellant] moved out in late March of 2005, but he did not take the office computer with him . Rose claim ed that after [ Appellant] 's departure the computer would not turn on and he called repeatedly with numerous threats, including that he would burn down her house, if she did not return the computer. However, Rose also stated that even when he returned to the house a few times in April, he did not take the computer.
Rose testified that because she remained concerned about the images on [ Appellant] 's computer, in May of 2005 she contacted the Chief of the Monessen Police Department who sent Lieutenant John Mandarino to the house on May 11, 2005. Rose informed him that she saw pornography on the computer and that [ Appellant] had somehow made the computer inoperable. She also relayed [ Appellant] 's story about being a KAZAA super node. Lieutenant Mandarino believed he needed a search warrant to seize the computer, so he did not attempt to access it, instead leaving it at the house. Rose testified that Lt. Mandarino told her to find someone to help with the computer.
Rose requested the help of George Caliguri, a convenience store owner who also did electronic repairs, by explaining her concern that child pornography was on the computer. Caliguri discovered the computer would not turn [ on] because it was password protected, however, he was able to bypass this setting. He accessed a few files, but testified that he did not install anything onto the computer. He also testified that Rose appeared "very upset" during the whole process.
With the computer now functioning, Rose showed some of its files t o her sister, Kim, and a friend, Tracy Francis. Francis testified that Rose was "very upset" when inviting her to the house and when she arrived to view the computer. After seeing images of what she believed to be an 8- or 9-year-old girl engaged in oral sex with a man in his sixties, Francis advised Rose to take the computer to the police, which they did together.
On May 17, 2005, Rose delivered the computer to Lt. Mandarino. After obtaining a search warrant on May 24, Lt. Mandarino turned on the computer to verify it contained child pornography. He testified to seeing images he believed were pornographic. However, in viewing the files he changed their "last accessed" date (the date the computer records as the last time a file was opened). In so doing, Lt. Mandarino made it impossible to document the last time the computer's user accessed those particular files.
Lieutenant Mandarino next turned the computer over for analysis to Special Agent Braden Cook of the Attorney General's Computer Forensic Unit. In doing his review of the computer, Agent Cook viewed all the pictures and videos on the hard drive and found many he believed were child pornography. Although Lt. Mandarino's actions made it impossible for Agent Cook to determine the "last accessed" date, Agent Cook was able to view the "file created" date (the date the file was downloaded or placed onto the computer), and the "file written" date (the date the file was modified). Agent Cook further stated the "file created" and "file written" dates cannot manually be changed; they can only be altered when you move the file or add to it. In addition, he found no viruses that could change data on the computer's hard-drive, but did find hundreds of emails to and from the email address
After doing his review, Agent Cook created a number of reports that documented the websites that had been viewed and files that had been downloaded onto the computer. Multiple websites and files listed in the reports included names signaling they could be child pornography. Found in m any entries was the word "Lolita, " a term commonly used in pornography to identify young girls. These and other entries also included words such as "teens, " "illegal, " " sex", " porn, " "Kiddy Orgy, " " daughter, " "14 yr old, " and others. Agent Cook's reports documented the times the websites were viewed and the "file created" and "file written" dates. The files were created between June of 2004 and March of 2005, the month [ Appellant] moved out of Rose's house. At trial, the Commonwealth played a DVD for the jury that contained 10 video clips of child pornography taken from the computer in question.

(See Commonwealth v. DiBiasi, 693 WDA 2010, unpublished memorandum at 1-5 (Pa.Super. 2011) (record citations omitted).

Following a trial, in January 2010, a jury found Appellant guilty of possessing child pornography[1] and criminal use of communication facility (computer).[2] On April 1, 2010, the court sentenced Appellant to not less than six nor more than twenty-three months' incarceration to be followed by a consecutive five-year term of probation.

Appellant filed a timely appeal. On June 3, 2011, this Court affirm ed the judgment of sentence. (See [ id. 31 A.3d 734 (Pa.Super. 2011) (unpublished memorandum]). Appellant did not seek leave to appeal to the Pennsylvania Supreme Court.[3]

On July 12, 2012, Appellant, through new counsel, filed a " Motion for New Trial Pursuant to Pennsylvania Rule of Criminal Procedure 720(C) [4] and Pursuant to Post Conviction Relief Act." (Appellant's Motion for a New Trial Pursuant to Pennsylvania Rule of Criminal Procedure 720(C) and Pursuant to Post Conviction Relief Act, 7/ 12/ 12, at title page and unnumbered page 1). The trial court held a hearing on Appellant's motion on September 6, 2012. On November 20, 2012, the trial court issued an Opinion and Order of Court denying "the Defendant's Motion for a New Trial[ .] " (Order of Court, 11/ 20/ 12, at unnumbered page 1).

On December 18, 2012, despite being represented by counsel, Appellant, acting pro se, filed a notice of appeal. On the same day, the trial court granted Appellant's motion to proceed in forma pauperis on appeal.[5]

By Memorandum of May 31, 2013, this Court deemed Appellant's motion for a new trial to be a first PCRA petition. Because counsel had abandoned Appellant on appeal from the denial of his PCRA petition and since Appellant was entitled to such representation, see Commonwealth v. Bennett, 930 A.2d 1264, 1273-74 (Pa. 2007), we remanded the matter for appointment of counsel and filing of new briefs in this matter. The PCRA court appointed counsel who filed an appellate brief in this matter; thus, it is now properly before us for disposition.

Appellant raises one question on appeal.

Whether the [ PCRA] court erred in denying a new trial based upon clear and compelling after-discovered evidence?

(Appellant's Brief, at 4).

Our standard of review for an order denying PCRA relief is well-settled:

This Court's standard of review regarding a PCRA court's order is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record.

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa.Super. 2011) (citations and quotation m arks omitted) . However, "if a PCRA [ p]etition is untimely, a trial court has no jurisdiction to entertain the petition." Commonwealth v. Hutchins, 760 A.2d 50, 53 (Pa.Super. 2000) (citations omitted).

Here, Appellant filed his first PCRA petition on July 12, 2012. The PCRA provides that "[ a]ny petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final. . . ." 42 Pa.C.S.A. § 9545(b)(1). Appellant's judgment of sentence became final on July 5, 2011, [6] thirty days after this Court denied his appeal and Appellant failed to seek leave to appeal to the Pennsylvania Supreme Court. Therefore, Appellant had one year, until July 5, 2012, to file a timely PCRA petition. Because Appellant did not file his current petition until July 12, 2012, the petition is facially untimely. Thus, he must plead and prove that he falls under one of the exceptions at Section 9545(b) of the PCRA. See 42 Pa.C.S.A. § 9545(b).

Section 9545 provides that the court can still consider an untimely petition where the petitioner successfully proves that:

(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.

Id. at § 9545(b)(1)(i)- (iii). Further, a petitioner who wishes to invoke any of the above exceptions must file the petition "within [ sixty] days of the date the claim could have been presented." Id. at § 9545(b)(2). The Pennsylvania Supreme Court has repeatedly stated that it is an appellant's burden to plead and prove that one of the above-enumerated exceptions applies. See, e.g., Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008), cert. denied, 555 U.S. 916 (2008). Here, Appellant does not discuss the timeliness of his PCRA petition; however, the basis for the petition is newly discovered facts, an exception under Section 9645(b)(1)(ii). (See Appellant's Brief, at 4).

Appellant seeks to invoke the newly-discovered facts exception codified at 42 Pa.C.S.A. § 9545(b)(1)(ii) and discussed in the Pennsylvania Supreme Court's decision in Bennett , which held that this exception refers not to after-discovered evidence, but to facts that were previously unknown to the petitioner. See Bennett, supra at 1270. The Court in Bennett also held, in accord with the statutory language, that an appellant must prove that the facts upon which the claim is predicated could not have been ascertained earlier through the exercise of due diligence. See id. at 1272. "A petitioner must . . . explain why his asserted facts could not have been ascertained earlier with the exercise of due diligence." Commonwealth v. Taylor, 933 A.2d 1035, 1041 (Pa.Super. 2007), appeal denied, 951 A.2d 1163 (Pa. 2008) (citation omitted).

The purported newly-discovered fact in the instant matter is the expert testimony of Maggie Buck, a forensic computer analyst. (See Appellant's Brief, at 13). According to Appellant, Buck's "new facts" are: (1) the password on Appellant's computer had not been changed since the date of manufacture; (2) Appellant's computer was accessed twelve times between May 13, 2005 and May 17, 2005; and (3) the reinstallation of the operating system on Appellant's computer overwrote files and destroyed evidence. (See id. at 14- 17).

However, Appellant has not pleaded facts which demonstrate that he exercised due diligence in obtaining this testimony. The record reflects that Appellant was aware of each of these three facts well before trial. A hearing on a petition for a writ of habeas corpus and motion to dismiss filed by Appellant took place on August 19, 2009, nearly five months before Appellant's trial. (See N.T. Motion Hearing, 8/ 19/ 09, at 3). At that hearing, Rose Ferrante[7] testified about accessing the computer after Appellant left the residence and about the reinstallation of the operating system . (See id. at 15-25). Lieutenant Mandarino of the Monessen Police Department testified regarding his accessing of the computer after Ferrante turned it over to the police. (See id. at 32-33). Special Agent Cook of the Attorney General's Computer Forensic Unit testified as an expert at the hearing. (See id. at 46-77). Cook testified in detail about the reinstallation and how it would effect the child pornography files, the changes caused by Ferrante and Detective Mandarino's accessing of the computer, and about whether or not the computer was password-protected (See id. at 50-53, 56-57, 67, 72, 74, 77). Trial counsel, who testified at the PCRA hearing, stated that he hired an expert to look into all three of these facts. (See N.T. PCRA Hearing, 9/ 06/ 12, at 7-13). However, when the expert concluded he could not provide any information that would be helpful to the defense, trial counsel asked him to look into the possibility that the computer had been hacked. (See id.). Thus, trial counsel's own statement confirm s that Appellant was aware of all the facts testified to by Buck prior to trial.

Thus, it is readily apparent from the record that Appellant was aware of these facts prior to trial and, when the first expert proved to be unhelpful, decided to go a different route rather than hire a second expert to look into the three issues. Further, Buck testified that Appellant hired her in May of 2012. (See id. at 29). Given Appellant's awareness, at the latest in August 2009, of these issues, he has provided no explanation of why he waited until 2012 to hire a second expert. Thus, Appellant has not shown that he exercised due diligence in attempting to locate this information.

Even if Appellant had exercised due diligence, he has not met the standard for after-discovered facts under the PCRA. To do so,

a petitioner must establish that: (1) the evidence has been discovered after trial and it could not have been obtained at or prior to trial through reasonable diligence; (2) the evidence is not cumulative; (3) it is not being used solely to impeach credibility; and (4) it would likely compel a different verdict."

Commonwealth v. D'Amato, 856 A.2d 806, 823 (Pa. 2004) (citation omitted).

Here, as noted above, Appellant was aware of all three computer issues prior to trial but was unable to find a helpful expert. In Commonwealth v. Lambert, 765 A.2d 306, 341-42 (Pa.Super. 2000), this Court held that a new expert's analysis of facts already in existence at the time of trial did not constitute after-discovered evidence for purposes of the PCRA. See id.

Further, Appellant has not shown that Buck's testimony would have compelled a different result. Thus, Appellant has not m et the standard for after-discovered facts.

Buck testified at the PCRA hearing that the password on Appellant's computer had not been changed while the computer was in Appellant's possession. (See N.T. PCRA Hearing, 9/ 06/ 12, at 39-42). This is entirely consistent with the testimony of the Commonwealth's expert, Special Agent Cook, who testified at trial that the password was changed after the computer left Appellant's possession, when a third party attempted to access the computer and used a method that changed the password to allow access. (See N.T. Trial, 1/ 13/ 10, at 243- 44). I n his brief, Appellant alleges that Buck's testimony would have contradicted the testimony of Ferrante, that the computer was password protected. (See Appellant's Brief, at 15-16). However, at trial, Ferrante testified that she was not knowledgeable about computers, (see N.T. Trial, 1/ 12/ 10, at 69), and that after Appellant left she was unable to get the computer to work, (see id.). She did not testify that the computer was password-protected. (See id. at 60-98). George Caliguri, a part-time computer repair-person, who did not testify as an expert, testified that the computer was password-protected but that he was able to use a work-around (as explained by Special Agent Cook) to change the password and turn the computer on. (See id. at 108-10). While Buck's testimony might have impeached part of Caliguri's testimony, newly-discovered facts cannot be used solely for impeachment purposes. See D'Amato, supra at 823.

Appellant argues that this evidence is exculpatory because the fact that he did not have a password on a computer containing child pornography shows that he lacked consciousness of guilt. (See Appellant's Brief, at 15-16). However, this would have been inconsistent with Appellant's defenses at trial, which were that the computer in question was not his but one of the other identical computers at Ferrante's residence and that he had alibis for the dates and times the child pornography was downloaded onto his computer. (See N.T. Trial, 11/ 14/ 10, at 369-76, 384-444).

Buck also testified that the computer had been accessed twelve times after the computer was out of Appellant's possession, but before it was turned over to the police. (See N.T. PCRA Hearing, 9/ 06/ 12, at 43-44). While there was no testimony at trial about the number of times third parties accessed the computer, Ferrante and Caliguri testified about accessing the computer to view the child pornography. (See N.T. Trial, 1/ 12/ 10, at 74-77, 110). Special Agent Cook testified that this accessing of the computer, as well as the accessing done by Detective Mandarino, destroyed evidence in that it changed the last-accessed date on the pornography files. (See N.T. Trial, 1/ 13/ 10, at 221). Thus, the issue of access to the computer and the fact that it destroyed some evidence was squarely in front of the jury, and evidence about the number of the times the computer was accessed is merely cumulative.

Appellant's final claim concerns Buck's testimony regarding the reinstallation of the operating system on Appellant's computer. (See N.T. PCRA Hearing, 9/ 06/ 12, at 32-36, 43, 51-52). However, Buck's testimony was almost entirely consistent with that of Special Agent Cook at trial. (See N.T. Trial, 1/ 13/ 10, at 226-28, 236-37). Both testified that the reinstallation was partial, not a full one, and that it had no effect on the child pornography files, which were user files. (See N.T. PCRA Hearing, 9/ 06/ 12, at 32-36-, 43, 51- 52; N.T. Trial, 1/ 13/ 10, at 226-28, 236-37). The only difference between their testimonies is that Buck testified that the partial reinstall affected the registry files; however, she did not link these files to the child pornography files or testify that the changes in the registry files had anything to do with the files at issue. (See N.T. PCRA Hearing, 9/ 06/ 12, at 43, 51-52). I n fact, Buck's testimony with respect to the reinstall was, at best, equivocal, because she testified that she thought it was "odd" that someone did a reinstall and that evidence "could possibly" have been overwritten. (I d. 34-35).

We agree with the PCRA court that all of the information testified to by Buck was known to Appellant at the time of trial. (See PCRA Ct. Op., 11/ 20/ 12, at 3-6). Further, Appellant has not demonstrated that Buck's testimony would have compelled a different result at trial.

Thus, for the reasons discussed above, we hold that Appellant's petition is untimely and he has failed to prove an exception to the time bar. Accordingly, we affirm the denial of his PCRA petition, albeit for a different reason than that expressed by the trial court. See Commonwealth v. Hernandez, 886 A.2d 231, 240 (Pa.Super. 2005), appeal denied, 899 A.2d 1122 (Pa. 2006) (holding that appellate court may affirm order of trial court on any basis, so long as decision is correct). Because Appellant's petition is untimely with no statutory exception to the time bar pleaded and proven, the PCRA court was without jurisdiction to address the merits of Appellant's claims, and we are without jurisdiction to review them.

Order affirmed.

Judgment Entered.

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