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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 ...

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