from the Judgment of Sentence April 14, 2016 In the Court of
Common Pleas of Allegheny County Criminal Division at No(s):
BEFORE: BOWES, J., LAZARUS, J., and OTT, J.
Edward Sperber, Jr., appeals from the judgment of sentence
entered in the Court of Common Pleas of Allegheny County.
Sperber was arrested and charged in March 2015 with eleven
counts of possession of child
pornography and criminal use of a communication
facility. The charges were filed after Sperber's
parole officer, from a prior case, found images of minor
females on his smartphone. After careful review, we affirm.
unrelated case, Sperber pled guilty in September 2001
("prior case"/"prior sex offenses") to
one count each of sexual abuse of children (relating to child
pornography), criminal use of a communication facility,
indecent exposure; two counts each of rape, sexual assault
and indecent assault; and three counts each of involuntary
deviate sexual intercourse (victim less than 16) and
statutory sexual assault. On January 17, 2002, the court
sentenced Sperber to an aggregate term of eight to twenty
years' imprisonment; he was also ordered to comply with
the lifetime registration requirements pursuant to
Megan's Law II, 42 Pa.C.S. §§ 9795.1(b) and
9795.2. In February 2014, the court paroled Sperber on the
prior sex offenses; he was paroled to his approved home where
he was supervised by Pennsylvania State Parole Board Agent
August 21, 2015, Sperber filed a motion to suppress in the
instant case claiming that his initial detention and the
subsequent search of his person, vehicle, and smart phone
were illegal because the parole agents did not have
reasonable suspicion to believe that they would discover
evidence of a parole violation in his prior case. Sperber
also argued that he never consented to the search of his
vehicle or smart phone and that any alleged consent was the
product of an unlawful investigatory detention.
suppression hearing, held on September 1, 2015, Agent Wolfe
testified that he had been supervising sex offenders
exclusively for seven years and that as conditions of his
parole, Sperber expressly consented to warrantless searches
of his person, property, and residence and acknowledged that
any items in his possession that constituted a violation of
his parole would be subject to seizure and used as evidence.
N.T. Suppression Hearing, 9/1/15, at 3-4, 6. As a special
condition of his parole in the prior case, Sperber expressly
consented to parole staff having access to any computer or
multimedia device in his possession, including cell phones,
and also permitted parole supervision staff to search all
programs and records maintained on any such devices.
Id. at 7. Finally, as another condition of his
probation, Sperber was prohibited from possessing a cell
phone with internet capabilities. Id. at 8.
testified that on August 27, 2014, his office received a call
from the Pennsylvania State Police Megan's Law Division
(the Division) that it had received an anonymous tip that
Sperber had access to social networking sites on a smart
phone. The Division gave Wolfe two associated internet user
names connected to the social media sites. Id. at 9.
Wolfe tried to ascertain the identity of the user names on
several sites, but was unsuccessful because they were
password-encrypted. Prior to receiving the anonymous tip,
several sex offenders, who were in Sperber's sex offender
treatment group and were being supervised by Agent Wolfe, had
also informed Wolfe that Sperber possessed a smart phone.
same day Wolfe received the anonymous tip from the Division,
Sperber reported to the Pennsylvania State Parole Pittsburgh
Office for a regularly scheduled visit with Wolfe. When he
arrived, Wolfe questioned Sperber about the anonymous tip and
reports about him possessing a smart phone and asked him to
empty his pockets. Sperber did so, producing car keys and a
regular (non-smart) cell phone. Wolfe asked Sperber if he was
hiding anything in his car, to which he replied
"no." Id. at 10. Wolfe then asked Sperber
for permission to search his car, to which Sperber agreed.
Id. Two other parole agents opened Sperber's car
and confiscated an Android cell phone with internet
capabilities. Id. at 11. Sperber's cell phone
was password-protected; Sperber gave Wolfe the password at
his request. Id. at 12-13. Wolfe entered the
password which unlocked the phone, revealing images of young
minor females. At that point, Wolfe filed a confiscation
report and turned the phone over to the Attorney
General's Office for further investigation. Id.
the parties filed briefs on the matter, the trial court
denied Sperber's suppression motion on October 19, 2015.
Sperber proceeded to a non-jury trial before the Honorable
Donna Jo McDaniel. Following trial, Sperber was found guilty
of counts 2-12; count 1 was withdrawn. On April 14, 2016, the
court sentenced Sperber on the pornography charges to five
consecutive 5-10 year terms of incarceration, for an
aggregate sentence of 25-50 years' imprisonment. No
further penalty was imposed on the communication charge.
Sperber filed no post-sentence motions.
filed a timely notice of appeal and court-ordered Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal.
He presents the following issue for our consideration:
Did the trial court err by denying Mr. Sperber's motion
to suppress evidence where the initial detention of Mr.
Sperber along with the subsequent searches of his vehicle and
smart phone, because they were not supported by reasonable
suspicion, were illegal and conducted in violation of his
rights under the Fourth and Fourteenth Amendments to the
United States Constitution and Article One, Section Eight of
the Pennsylvania Constitution?
Brief, at 5.
In an appeal from the denial of a motion to suppress, an
appellate court's role is to determine whether the record
supports the suppression court's factual findings and the
legitimacy of the inferences and legal conclusions drawn from
those findings. In making that determination, the appellate
court may consider only the evidence of the prosecution's
witnesses and so much of the defense as, fairly read in the
context of the record as a whole, remains uncontradicted.
When the factual findings of the suppression court are
supported by the evidence, the appellate court may reverse
only if there is an error in the legal conclusions drawn from
those factual findings.
Commonwealth v. Griffin, 24 A.3d 1037, 1041 (Pa.
Super. 2011) (quotation omitted).
well established that individuals under parole supervision
have limited search and seizure rights. Commonwealth v.
Chambers, 55 A.3d 1208 (Pa. Super. 2012). "In
exchange for early release from prison, the parolee cedes
away certain constitutional protections enjoyed by the
populace in general." Commonwealth v. Edwards,
874 A.2d 1192, 1197 (Pa. Super. 2005) (citation omitted).
Parolees agree to warrantless searches based only on
reasonable suspicion. Commonwealth v. Colon, 31 A.3d
309 (Pa. Super. 2011). State parole agents are statutorily
permitted to perform a personal search of an offender or his
or her personal property if there is reasonable suspicion to
believe "that the offender possesses contraband or other
evidence of violations of conditions of supervision" or
"that the real or other property in the possession of or
under the control of the offender contains contraband or
other evidence of violations of the conditions of
supervision." 61 Pa.C.S. § 6153(d)(1)(i), (2).
the determination of whether reasonable suspicion exists is
to be considered in light of the totality of the
circumstances, Commonwealth v. Shabazz, 18 A.3d 1217
(Pa. Super. 2011), under section 6153(d)(6),
[t]he existence of reasonable suspicion to search shall be
determined in accordance with constitutional search and
seizure provisions as applied by judicial decision. In
accordance with such case law, the following factors, where
applicable, may be taken into account:
(i) The observations of agents.
(ii) Information provided by ...