Commonwealth v. Coleman

1

COMMONWEALTH OF PENNSYLVANIA v. JOHN WILLIAM COLEMAN Appellant

No. 1197 EDA 2023

No. J-A10017-24

Superior Court of Pennsylvania

August 19, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered January 20, 2023 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0001550-2020

Benjamin D. Kohler, Esq.

BEFORE: PANELLA, P.J.E., BECK, J., and COLINS, J. ^[*]

MEMORANDUM

BECK J.

John William Coleman ("Coleman") appeals from the judgment of sentence imposed following his convictions of ten counts of sexual abuse of children and one count of criminal use of a communication facility.^[1] Coleman argues that the trial court erred in denying his motion to suppress evidence obtained from his cell phone; the police violated his Fifth Amendment rights by compelling him to provide his cell phone password; a violation of his speedy trial rights pursuant to Pa.R.Crim.P. 600; and raises a constitutional challenge to the statutory sex offender registration requirements under Pennsylvania's Sexual Offender Registration and Notification Act ("SORNA").^[2] We affirm.

The trial court set forth the relevant facts as follows:

On November 21, 2019, [Detective Jim] Reape [of the Montgomery County Detective Bureau] received a cyber tip from the Pennsylvania Internet Crimes Against Children Task Force ("Task Force"). The National Center for Missing and Exploited Children ("NCMEC")^[3] had sent the cyber tip to the Task Force. MeWe, a social media application akin to Snapchat and Instagram, had sent information to NCMEC that a MeWe subscriber had uploaded two (2) images of suspected child pornography on September 17, 2019. MeWe also provided the following information to NCMEC: (1) the name used by the subscriber to create an account with MeWe was Johnny Cole; (2) when creating a MeWe account, this subscriber listed a cell phone number of 215-870-[****]; and (3) a list of 12 IP addresses used by this subscriber to access MeWe. Of these 12 IP addresses, nine (9) were owned by Verizon Wireless and three (3) were owned by Verizon Fios. Verizon Wireless and Verizon Fios are internet service providers. One of the three (3) IP addresses owned by Verizon Fios was 173.75.254.184 ("184 IP Address").

On November 21, 2019, [Detective] Reape sent an administrative subpoena to Verizon Fios regarding the 184 IP Address, which had been used to access subscriber Johnny Cole's MeWe account on October 31, 2019. [Detective] Reape sent this subpoena to Verizon Fios in an effort to further identify the MeWe subscriber that had uploaded the two (2) images of suspected child pornography. As the tip provided by MeWe to NCMEC did not list the IP address used by its subscriber to upload the images on September 17, 2019, [Detective] Reape could not request this IP address from Verizon Fios. [Detective] Reape selected a Verizon Fios IP address, the 184 IP Address, rather than one of the nine (9) Verizon Wireless IP addresses in an attempt to learn the location from which the two (2) images were uploaded to MeWe.

Verizon Fios responded to [Detective] Reape that the 184 IP address was their address, but it was unassigned on October 31, 2019, which is the date provided to them by [Detective] Reape in his subpoena. [Detective] Reape did not subpoena records for any of the nine (9) Verizon Wireless IP addresses because such IP addresses can be shared with 100 other cell phones so any information derived from such an IP address is not particularly reliable. If any of the Verizon Wireless IP addresses had included a port, then that would identify the specific cell phone that had accessed the MeWe application. The Verizon Wireless IP addresses listed in the cyber tip that NCMEC provided to the Task Force did not include any port numbers so they would not indicate the particular cell phone that had accessed MeWe.

Since Verizon Fios was unable to provide the name of the person who had accessed the MeWe site on October 31, 2019, [Detective] Reape used the cell phone number provided in the NCMEC cyber tip in an effort to identify the identity of [the] MeWe user. [Detective] Reape searched for the cell phone number in a police database and found that this number had been listed for a John Coleman in a 2018 ambulance report. Per this report, an ambulance responded to an injury sustained by [Coleman], and the report listed John Coleman's address in the English Village apartment complex at [a specifically identified address in] Horsham Township. This address is within the 5-kilometer area of the 184 IP addressed that accessed MeWe on October 31, 2019.

[Detective] Reape identified this cell phone number as being associated with [Coleman] on December 2, 2019. On December 4, 2019, [Detective] Reape went to [Coleman's] employer, Jamison Home Services, in an effort to verify that the cell phone number was in [Coleman's] name and he still resided at 700 Lower State Road. [Coleman's] employer confirmed that the cell number 215-870-[****] was still [Coleman's] phone number, and he still resided at [the identified address]. Having verified this information, [Detective] Reape prepared a search warrant for the cell phone associated with that phone number.

The search warrant was approved on December 5, 2019. On the morning of December 6, 2019[,] at approximately 6:20 a.m., [Detective] Reape, along with Detective [Vincent] Higgins of the Montgomery County[ and] … Sergeant Adam Dunning of the Horsham Township Police Department, went to [Coleman's] address … to serve the search warrant. They were not in uniform. [Detective] Reape wore a vest with police markings. They approached [Coleman] as he exited his residence. They identified themselves as police officers. [Detective] Reape informed him that they were investigation child pornography through the MeWe app and asked him if he ever used that app. [Coleman] replied that he did for adult pornography. [Detective] Reape asked [Coleman] if he had the cell phone on him, and [Coleman] responded that it was inside his residence. They asked if they could enter his residence, and [Coleman] agreed.

[Detective] Reape asked [Coleman] if they could look at the MeWe app on his phone, and [Coleman] agreed to this request. [Coleman] opened the MeWe app on his phone and showed police a couple images of adult pornography. At that point, [Detective] Reape informed [Coleman] that they had a search warrant for his cell phone, and they had to take possession of it. [Coleman] then hit the phone's home button, which locked the phone.

[Detective] Reape asked [Coleman] if he would mind unlocking the phone, and [Coleman] inserted the code to unlock the phone. [Detective] Reape asked [Coleman] to provide his phone passcode, and [Coleman] did so. [Detective] Reape brought the phone to the Montgomery County Detective Bureau and downloaded its contents in the forensic lab. The Detective Bureau possessed Gray Key technology that allows it to access a cell phone's contents without having a passcode for the phone so the police would have been able to download the contents of [Coleman's] cell phone in the event he declined to provide the passcode. The demeanor of the police during the entire encounter with [Coleman] was cordial. They did not yell, raise their voices, or threaten [Coleman].

Trial Court Opinion, 8/23/2023, at 5-8 (footnotes omitted and bracketed footnote added).

The examination of the phone revealed numerous images of children engaged in sexual acts. On December 6, 2019, Detective Reape filed a criminal complaint against Coleman charging him with nine counts of sexual abuse of children, graded as second-degree felonies, one count of sexual abuse of children, graded as a third-degree felony, and one count of criminal use of a communication facility, graded as a third-degree felony. A preliminary hearing was originally scheduled for January 14, 2020, but Coleman's counsel sought a continuance, which was granted, and the preliminary hearing was rescheduled for February 19, 2020. Following the hearing, the magisterial district judge bound the charges over for trial.

On February 19, 2020, Coleman sent a discovery request to the Commonwealth. After failing to receive a response, he sent another letter on March 4, 2020. On March 16, 2020, the Pennsylvania Supreme Court entered an order declaring a statewide judicial emergency because of the COVID-19 pandemic.^[4] On April 14, 2020, Coleman filed an omnibus pretrial motion and a motion for discovery. In the motion for discovery, Coleman sought, inter alia, expert and state police reports; any photographs, regardless of whether the Commonwealth sought to introduce them at trial; and the names and addresses of all eyewitnesses. On May 12, 2020, Assistant District Attorney Erika Wevodau ("Wevodau") sent an email to Coleman's counsel, attaching discovery as well as the notice of formal arraignment, criminal complaint, affidavit of probable cause, and bail information. The following day, Coleman's counsel acknowledged receipt of the discovery, but indicated that all the requested police reports and expert reports were not included in the discovery. Wevodau did not respond to this request, and Coleman's counsel did not follow up with any further conversations about the discovery.

Following a pretrial conference on May 14, 2021, the trial court scheduled a bench trial for August 25, 2021. On July 1, 2021, Coleman filed an amended omnibus pretrial motion, and a second amended omnibus pretrial motion on July 21, 2021, which included a motion to suppress the evidence obtained from his phone and a motion to dismiss pursuant to Pa.R.Crim.P. 600.

Assistant District Attorney Emily D'Aguanno ("D'Aguanno") was assigned to this case in July 2021....