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Commonwealth v. Manivannan

Superior Court of Pennsylvania

May 4, 2018

COMMONWEALTH OF PENNSYLVANIA
v.
AYYAKKANNU MANIVANNAN Appellant COMMONWEALTH OF PENNSYLVANIA Appellant
v.
AYYAKKANNU MANIVANNAN

         Appeal from the Judgment of Sentence June 10, 2016 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0000017-2016, CP-14-CR-0001124-2015

          BEFORE: STABILE, J., NICHOLS, J., and RANSOM [*] , J.

          OPINION

          RANSOM, J.

         In this 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.[1] 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 Supplemental Authority.

         In 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.

         By 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.

         Ms. 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 112, 115.

         Ms. 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.

         Upon 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 98.239.142.39 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.

         Officer 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.

         Based 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 98.239.142.39 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.

         During 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 98.239.142.39 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.

         Appellant 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.

         As 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.

         Appellant 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.

         At 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.

         Receipts 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.

         In 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." Id.

         In June 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.

         In 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.

         On appeal, Appellant presents the following issues for our review:

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 inadmissible hearsay?
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 98.239.142.39 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. § 7611(a)(2)?

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 sentencing guidelines.

Commonwealth's Brief at 6 (some formatting added). We begin our discussion with a review of Appellant's claims.

         In his 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.[2] For these reasons, Appellant concludes that he is entitled to a new trial. Id. at 21, 58.

         Our 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 ill-will.

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)).

         Hearsay 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. Id.

         At 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 witness: ...
(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 condition if,
(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, ...

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