Appeal from the Order entered on April 25, 2014 in the Court of Common Pleas of Berks County, Criminal Division, No. CR-06-CR-0001025-2005
BEFORE: PANELLA, OTT and MUSMANNO, JJ.
The Commonwealth of Pennsylvania appeals from the Order granting the suppression Motion filed by the defendant, Kenneth F. Sodomsky ("Sodomsky"). We affirm.
In a prior appeal, this Court summarized the relevant history of this case as follows:
Richard Kasting ["Mr. Kasting"] was the senior sales assistant in the technology department of the Circuit City [s]tore located on Woodland Road, Wyomissing, Berks County[, Pennsylvania]. Mr. Kasting testified that on October 15, 2004, [Sodomsky] came to Circuit City and asked Mr. Kasting to install an optical drive and DVD burner into his computer. The work order that [Sodomsky] executed that day authorized Circuit City to install and configure the optical drive unit and DVD in his desktop computer.
In accordance with store practice, Mr. Kasting summarized to [Sodomsky] "what is done during the installation." N.T. Suppression Hearing, 9/28/05, at 16. [Sodomsky] was informed that as part of the installation process, the installer would "have to make sure [that the DVD burner] works." Id. at 17. There is no indication that [Sodomsky] asked how the DVD burner would be tested or in any manner restricted what procedure could be utilized to confirm the burner's operability. [Sodomsky] requested that the work be performed on an expedited basis, and Mr. Kasting instructed him to return in approximately one hour.
Toby Werner was in the middle of the installation process when Stephen Richert ["Mr. Richert"], the head of personal computer repairs at Circuit City, arrived. Mr. Richert testified that the DVD drive was installed when he arrived in the department, but the software had not yet been installed. Mr. Richert explained that all DVD burners and players were accompanied by software.[FN] Mr. Richert testified specifically that at Circuit City, with "every installation" of the hardware, "any supplementary software" was installed both as a courtesy "and to make sure when it leaves the store, we can guarantee that it is working." Id. at 21.
We weren't looking for anything specific, so we did a generic search. …
… [I]n this case, we wanted to make sure that all types of files were working fine so that you wouldn't get any type of errors….
Id. at 22-23.
Mr. Richert testified that once the search button was activated for a given object, the computer automatically loaded the requested files onto the screen, which continued to enlarge by itself. Thus, after the search was initiated, Mr. Richert did not manipulate the computer further to see the entire list of videos. Id. at 30-31. The first few video titles that appeared from [Sodomsky's] video list were innocuous. However, as the video log continued to compile on the computer screen, which occurred without any human intervention, some of the files appeared to be pornographic in nature due to their titles[, ] which included masculine first names, ages of either thirteen or fourteen, and sexual acts. Mr. Richert clicked on "the first one" that appeared questionable, and the video contained the lower torso of an unclothed male, and when a hand approached the male's penis, Mr. Richert immediately stopped the video. Id. at 24. Mr. Richert contacted his manager and then telephoned the Wyomissing police.
During cross-examination, Mr. Richert admitted that he had been told by a Pennsylvania State Police Officer to contact police if he ever ran across what appeared to be child pornography while at work. At the time, Mr. Richert was taking a course at a local college and hoped to enter the law enforcement field.
Wyomissing Police Detective George Bell ["Detective Bell"] and two other police officers responded to the call and viewed the same video clip [while at the Circuit City store]. When [Sodomsky] arrived to retrieve his computer, Detective Bell informed him that his computer was being seized because police suspected that it contained child pornography. [Sodomsky] responded that he knew what they had found and that his "life was over." Id. at 87. Police took the computer to the police station, obtained a warrant to search it, and discovered child pornography.
Commonwealth v. Sodomsky, 939 A.2d 363, 364-66 (Pa. Super. 2007) (one citation omitted; footnote in original).
On March 11, 2005, Sodomsky was charged with two counts of sexual abuse of children, and one count of obscene and other sexual materials and performances. Subsequently, Sodomsky filed an Omnibus Pre-trial Motion to suppress the evidence seized from his computer. After a hearing, the trial court granted the suppression Motion, after which the Commonwealth filed an interlocutory appeal to this Court.
On appeal, the Commonwealth argued that
the trial court erred in concluding that [Sodomsky] retained a privacy interest in the computer because he volitionally relinquished any expectation of privacy in that item by delivering it to Circuit City employees knowing that those employees were going to install and test a DVD device….
Id. at 366 (emphasis added). A panel of this Court agreed, in part, with the Commonwealth's contention. Id. Reversing the suppression court's Order, the panel reasoned that, "when an individual evidences an intent to relinquish control over personal property, he or she has abandoned a privacy interest in property and cannot object to any ensuing search of the item by police." Id. In so holding, the panel focused solely upon Sodomsky's expectation of privacy:
The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.
Id. at 366-67 (emphasis added) (quoting Commonwealth v. Shoats, 366 A.2d 1216, 1220 (Pa. 1976)). The panel additionally applied the Pennsylvania Supreme Court's holding in Commonwealth v. Hawkins, 718 A.2d 265 (Pa. 1998), explaining that in Hawkins,
the defendant handed an item to another individual, who then placed it in his mouth. Police seized the individual and extracted the property, which consisted of illicit drugs. Our Supreme Court refused to allow the defendant to object to the seizure of the drugs, noting that under current Fourth Amendment jurisprudence, a defendant cannot object to a search unless he establishes a legitimate expectation of privacy, "in the area searched or the effects seized" and that such interest must also be sanctioned by society as reasonable and justifiable." [Hawkins, ] … 718 A.2d at 267. … [A] "legitimate expectation of privacy is absent where an owner or possessor meaningfully abdicates his control, ownership or possessory interest" in his personal property. Id. … at 267. …
Sodomsky, 939 A.2d at 367. Ultimately, the panel concluded that Sodomsky had no reasonable expectation of privacy because he had "abandoned" his computer, for one hour, for the installation of a DVD drive. Id. at 369. Accordingly, the panel reversed the suppression court's Order, and remanded for further proceedings.
On remand, Sodomsky filed a Petition to introduce new evidence, claiming that such evidence was unavailable to the defense prior to the evidentiary hearing on his suppression Motion. The trial court issued a Rule to Show Cause why the Petition should not be granted, and scheduled an evidentiary hearing. At the hearing, Sodomsky presented two experts, who testified about industry standards and the methods used by Mr. Richert to install the DVD burner. First, William Scott Ardisson testified that opening the computer's video files was not a proper method for testing the installation of a DVD burner. N.T., 2/15/11, at 15. Next, Charles Mance testified that the methods used by Mr. Richert to test the drive were not consistent with industry standards. Id. at 56. Based upon Sodomsky's new evidence, the suppression court again found that Sodomsky had a reasonable expectation of privacy in the digital data on his computer. Therefore, on March 22, 2011, the suppression court granted Sodomsky's suppression Motion. Once again, the Commonwealth appealed the suppression court's ruling.
During its second appeal, the Commonwealth argued, inter alia, that the trial court had erred in granting suppression "because [Sodomsky] 'failed to establish that he retained any expectation of privacy in his computer after he turned it over to Circuit City employees.'" Commonwealth v. Sodomsky, 47 A.3d 1257 (Pa. Super. 2012) ...