from the Judgment of Sentence June 10, 2016 In the Court of
Common Pleas of Centre County Criminal Division at No(s):
BEFORE: STABILE, J., NICHOLS, J., and RANSOM [*] , J.
consolidated appeal, Ayyakkannu Manivannan
("Appellant"), appeals from the judgment of
sentence of four and one-half years of probation, imposed
June 10, 2016, following a jury trial resulting in his
conviction of five counts of unlawful use of computer and one
count of harassment. The Commonwealth cross-appeals. After
careful review, we are constrained to vacate the judgment of
sentence, to remand for a new trial, and to dismiss the
Commonwealth's appeal. Additionally, we grant
Appellant's Application for Leave to File Post-Submission
August 2011, Faith Beck began to work with Appellant at the
United States Department of Energy's ("DOE")
National Energy Technology Laboratory ("NET Lab")
located in Morgantown, West Virginia, where Appellant also
lives. Notes of Testimony (N.T.), 4/18/16, at 64-68, 90,
127-28. The two began a romantic relationship, and Ms. Beck
occasionally used Appellant's computer to access her
email account during this time. Ms. Beck did not give
Appellant permission to access her email account. In 2013,
Appellant helped Ms. Beck enroll in a one-year graduate
program at Pennsylvania State University and secured funding
for tuition through DOE. Id. at 65-67. Ms. Beck
continued to work at the NET Lab with Appellant. Id.
at 91. In November 2013, Ms. Beck began a romantic
relationship with fellow student Partha Mishra and endeavored
to end her romantic relationship with Appellant. Id.
at 68, 78.
January 2014, Appellant was repeatedly contacting Ms. Beck
daily by phone call, text message, email, and Skype.
Id. at 71-72, 80-89, 92-94. One night, Ms. Beck and
Mr. Mishra were sitting in her car in a parking lot when
Appellant pulled up behind them. Id. at 95-99.
Appellant followed Ms. Beck as she drove to a local police
station and pulled over as she did, whereupon she told him to
stop following her. Id. Ms. Beck reported the
incident to Officer Jessica Meyer of Pennsylvania State
University Police and explained that Appellant was repeatedly
contacting her. Id. at 99; N.T., 4/19/16, at 8-9.
Beck also testified that, in March 2014, Appellant sought a
meeting with her under the guise that she was meeting her
supervising professor, only to find Appellant to be the sole
other person in attendance. N.T., 4/18/16, at 115. Following
this incident, Ms. Beck secured funding for her program from
the University so that she no longer needed to work at NET
Lab under the supervision of Appellant. Id. at
102-13. In April 2014, she informed the DOE that she would
not be returning to her position at NET Lab. Id. at
Beck testified that, in July 2014, she and Mr. Mishra planned
a weekend trip to Falling Water, located approximately an
hour away from Morgantown, West Virginia. Id. at
119; Commonwealth's Exhibit 57. At Falling Water, she was
advised by two individuals with whom she was familiar that
Appellant was there. Id. at 120. Suspicious that
Appellant's presence was more than mere coincidence, Ms.
Beck spoke with her mother and learned that the accommodation
information for the weekend trip was forwarded to her mother
from Ms. Beck's email address, although Ms. Beck did not
send the emails herself. Id. at 121-29. Two emails
were forwarded to Ms. Beck's mother. Id. The
first email, dated July 2, 2014, at 10:25 p.m., contained a
room reservation at a bed and breakfast for the night before
the trip to Falling Water. Id. The second email,
dated July 2, 2014, at 1:43 a.m., contained reservation
details for a hotel room on the date of the visit to Falling
Water. Id. A third email, sent on July 2, 2014, was
forwarded to Ms. Beck's sister and contained a G-chat
instant message conversation between Ms. Beck and Mr. Mishra
that contained sexual content. Id. at 129-39.
investigating her email account settings, particularly her
account history, Ms. Beck and Mr. Mishra discovered that from
June 22, 2014, to July 18, 2014, her account was accessed
twenty-one times from thirteen different Internet Protocol
("IP") addresses located in: Boston, Massachusetts;
Boulder, Colorado; Houston, Texas; Metairie, Louisiana; San
Francisco, California; San Jose, California; Los Angeles,
California; and Morgantown, West Virginia. Id. at
121-26, 260-63. They took screenshots of this suspicious
account activity, and Mr. Mishra forwarded the screenshots to
Officer Meyer. Id. at 257-68. Of note, Ms.
Beck's email account was accessed five times from IP
address 126.96.36.199 in Morgantown. Id. at 261;
N.T., 4/19/16, at 19. Each of these screenshots feature the
designation "Comcast.net" under the IP address.
See Commonwealth's Exhibits 60-64.
Meyer testified that upon receiving the screenshots from Mr.
Mishra, she utilized the website Geektools.com to determine
the internet providers corresponding to the thirteen IP
addresses identified in the screenshots. N.T., 4/19/16, at
13-18. Appellant objected to any reference to that website as
hearsay, but the trial court overruled the objection.
Id. at 14.
upon her search results from Geektools.com, Officer Meyer
secured from the trial court a series of particularized
subpoenas to each internet provider for the subscriber
information during the dates and times reflected on the
corresponding screenshots. Id. at 15-19. Comcast was
the only internet service provider that returned subscriber
information in response to the subpoenas. Id. at
18-19. Specifically, the search on Geektools.com identified
Comcast Cable Communications, Inc. ("Comcast") as
the internet provider for the IP address 188.8.131.52 in
Morgantown, West Virginia. Id. The trial court
overruled Appellant's timely objection that printouts and
content from Geektools.com were inadmissible hearsay.
Id. at 14.
Officer Meyer's testimony, the Commonwealth attempted to
introduce Exhibit 10, a faxed letter on Comcast letterhead
addressed to Officer Meyer, and which outlined that IP
address 184.108.40.206 belonged to subscriber Manivannan on
July 12, 2014, at 9:34 a.m. and 10:40 a.m.; July 17, 2014, at
1:32 a.m. and 12:47 p.m.; and July 18, 2014, at 11:25 a.m.,
five of the times Ms. Beck's account was accessed without
her permission. Id. at 19; Commonwealth's
Exhibit 10. These five instances of access were cited as the
basis for Appellant's five, unlawful use of computer
charges. See Amended Information, 4/6/2016.
Additionally, the letter listed Appellant's home address
in Morgantown as the service address and included
"Ayyakkannu" as one of the email user names
associated with the account. Commonwealth's Exhibit 10.
Dated August 29, 2014, the letter did not indicate an
individual author and was signed "Comcast Legal Response
Center." Id. The date stamp on the letter
indicates it was sent to Pennsylvania State University Police
on September 4, 2014. Id.
timely objected to the admission of the Comcast letter and
argued that (1) no individual author of the Comcast letter
was identified in the unsigned document, which made the
veracity of the document itself dubious, and (2) an original
of the document was required under Pa.R.E. 1002. N.T.,
4/19/16, at 19-24.
certification for the Comcast letter, the Commonwealth
provided the trial court with a separate, faxed, boilerplate
Pa.R.E. 902(11) declaration dated April 18, 2016, that gave
no context for the document its signor purported to certify.
See Declaration by Custodian or Other Qualified
Person Pursuant to Pa.R.E. 902(11): Domestic Records of
Regularly Conducted Activity, 4/18/16. The boilerplate
declaration made no reference to Comcast or the Comcast
letter, was not attached to same, and the date stamp
indicated the document was faxed to Pennsylvania State
University Police on April 18, 2016. Id. The
Commonwealth presented no evidence that certification
accompanied the Comcast letter.
also timely objected to the certification, because (1) it was
tendered separately from the letter and may not even belong
to the letter and (2) an original of that document was
likewise required under Pa.R.E. 1002. N. T., 4/19/16, at
19-24; see also Appellant's Brief at 19.
sidebar, the Commonwealth argued that the Comcast letter was
admissible as a business record pursuant to Pa.R.E. 902(11).
N. T., 4/19/16, at 19-24. The trial court overruled
Appellant's objection, and the Comcast letter was
admitted into evidence. Id.
submitted to the DOE established that Appellant was on a
business trip in Los Angeles from June 29, 2014, to July 6,
2014, which corresponded to the four times Ms. Beck's
email was accessed from Los Angeles and once from an
indeterminable location in the state of California. N.T.,
4/18/16, at 279, 282-88.
April 2016, Appellant was convicted of the aforementioned
charges. N.T., 4/19/16, at 297. At Appellant's sentencing
hearing in June 2016, Appellant made an oral motion for
extraordinary relief in the form of a new trial, averring the
admission of the Comcast letter and certification was
improper, as originals of the documents were required
pursuant to Pa.R.E. 1002 and 1003. N.T., 6/10/16, at 3-8. The
trial court denied the motion for extraordinary relief.
Id. at 9. Appellant was sentenced to six months of
probation on the misdemeanor harassment and two years of
probation on each of the five felony computer convictions,
with the harassment sentence and two of the computer
sentences to run consecutively, for a total term of four and
one-half years of probation. Id. at 18-26. Over the
objection of the Commonwealth, the trial court also
prohibited Appellant "from being in the Commonwealth of
Pennsylvania except for the purpose of having contact with
the Centre County Probation and Parole Department."
2016, the Commonwealth timely filed a motion to modify
sentence, arguing that the court's stated reason for
mitigating Appellant's sentence was an unenforceable,
unconstitutional prohibition on Appellant's right to
travel. Commonwealth's Motion to Modify Sentence,
6/20/2016 at 1-4. The trial court denied the
Commonwealth's motion in September 2016; however, the
court removed its previously imposed restrictions banning
Appellant from entering or being within the Commonwealth of
Pennsylvania. Order, 9/9/2016.
October 2016, the parties timely filed cross-appeals from the
Appellant's judgment of sentence. Both parties timely
filed court-ordered Pa.R.A.P. 1925(b) statements, and the
court filed a responsive opinion to each respective appeal.
This Court sua sponte consolidated the appeals in
November 2016. In January 2017, the Appellant and the
Commonwealth jointly filed a stipulation to correct or modify
the record, attaching an additional, one-page document
titled, "Declaration by Custodian or Other Qualified
Person Pursuant to Pa.R.E. 902(11): Domestic Records of
Regularly Conducted Activity, " which was not previously
included in the certified record transmitted to this Court.
Stipulation to Correct of Modify the Record, 1/31/2017. This
was the boilerplate Pa.R.E. 902(11) declaration purporting to
certify the Comcast letter.
appeal, Appellant presents the following issues for our
1. Did the trial court err by admitting into evidence an
unsigned letter from Comcast (the "Comcast
letter"), the only evidence linking Dr. Manivannan to
the IP address allegedly used to "hack" into the
victim's Gmail account, where the Commonwealth failed to
properly authenticate the letter under Pa.R.E. 902(11), it
was inadmissible hearsay, and where admitting the letter
violated Dr. Manivannan's right to confront the witnesses
against him under the United States Constitution?
2. Did the trial court err by admitting printouts from the
website GeekTools.com identifying Comcast as the service
provider for the IP address allegedly used to
"hack" into the victim's Gmail account, where
the printouts and testimony about their contents were
3. Was the lay testimony of Faith Beck, Partha Mishra, and
Officer Meyer legally sufficient to prove beyond a reasonable
doubt that someone using IP address 220.127.116.11 unlawfully
accessed Faith Beck's Gmail account five times on July
12, 17, and 18, 2014, as required for the convictions for
unlawful use of a computer under 18 Pa.C.S. §
Appellant's Brief at 2-3 (some formatting added). The
Commonwealth presents the following issue for our review:
1. Whether the sentencing court abused its discretion in
sentencing [Appellant] to the mitigated range of the
Commonwealth's Brief at 6 (some formatting added). We
begin our discussion with a review of Appellant's claims.
first claim, Appellant asserts that it was prejudicial error
to admit the Comcast letter and advances two arguments in
support of this challenge. Appellant's Brief at 21-46.
First, according to Appellant, the Commonwealth failed to
authenticate properly the Comcast letter under Pa.R.E.
902(11). Id. Thus, Appellant concludes that the
letter was inadmissible hearsay. Moreover, Appellant suggests
the letter was highly prejudicial, as its contents permitted
the jury to conclude that Appellant unlawfully hacked into
the victim's email, "sending both electronic
communications about [Ms.] Beck's personal life to her
mother and sister, and a non-verbal message to [Ms.] Beck
directly that he was watching her." Appellant's
Brief at 36-37. Second, and in the alternative, Appellant
suggests that admission of the Comcast letter violated his
constitutional right to confront the witnesses against him.
Id. at 21-33. For these reasons, Appellant concludes
that he is entitled to a new trial. Id. at 21, 58.
standard of review is well-settled:
The admission of evidence is solely within the discretion of
the trial court, and a trial court's evidentiary rulings
will be reversed on appeal only upon an abuse of that
discretion. An abuse of discretion will not be found based on
a mere error of judgment, but rather occurs where the court
has reached a conclusion that overrides or misapplies the
law, or where the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or
Commonwealth v. Witmayer, 144 A.3d 939, 949 (Pa.
Super. 2016) (citation omitted). To constitute reversible
error, an evidentiary ruling must not only be erroneous, but
also harmful or prejudicial to the complaining party.
Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa. Super.
2012) (citing McNanamon v. Washko, 906 A.2d 1259,
1268-69 (Pa. Super. 2006)). "[A]n evidentiary error of
the trial court will be deemed harmless on appeal where the
appellate court is convinced, beyond a reasonable doubt, that
the error could not have contributed to the verdict."
Commonwealth v. DeJesus, 880 A.2d 608, 614 (Pa.
2005) (citing Commonwealth v. Story, 383 A.2d 155,
164-66 (Pa. 1979)).
is an out of court statement offered to prove the truth of
the matter asserted. Pa.R.E. 801(C). Generally, it is not
admissible, as it "lacks guarantees of trustworthiness
fundamental to [our] system of jurisprudence."
Commonwealth v. Smith, 681 A.2d 1288, 1290 (Pa.
1996) (quoting Heddings v. Steele, 526 A.2d 349, 351
(Pa. 1987)). In order to guarantee trustworthiness, the
proponent of a hearsay statement must establish an exception
to the rule of exclusion before it shall be admitted.
issue here is whether the Comcast letter meets the
requirements of the exception for business records.
Pennsylvania Rule of Evidence 803 provides, in relevant part:
The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a
(6) Records of a Regularly Conducted
Activity. A record (which includes a memorandum,
report, or data compilation in any form) of an act, event or
(A) the record was made at or near the time by - or from
information transmitted by - someone with knowledge;
(B) the record was kept in the course of regularly conducted
activity of a "business", which term includes
business, institution, association, profession, occupation,
and calling of every kind, ...