Commonwealth v. Dridi

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COMMONWEALTH OF PENNSYLVANIA v. MOHAMED DRIDI Appellant

No. 880 EDA 2022

No. J-S07012-23

Superior Court of Pennsylvania

May 31, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the PCRA Order Entered March 25, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008768-2016

Joseph D. Seletyn, Esq.

BEFORE: DUBOW, J., KUNSELMAN, J., and KING, J.

MEMORANDUM

DUBOW J.

Appellant Mohamed Dridi ("Appellant" and/or "Dridi"), appeals from the March 25, 2022 order that dismissed his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541-46. He challenges the effectiveness of trial counsel appellate counsel, and, for the first time on appeal, initial PCRA counsel. After careful review, we affirm the PCRA court's decision rejecting Appellant's claim that trial and appellate counsel were ineffective for failing to challenge the search warrant's lack of particularity. However, we vacate and remand for further proceedings regarding Appellant's new claims of ineffectiveness of initial PCRA counsel as directed by Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021).

On direct appeal, a previous panel of this Court set forth the factual and procedural history as follows:

On April 10, 2016, Special Agent Eric Barlow (Agent Barlow) of the Pennsylvania Office of the Attorney General (OAG) utilized the office's peer-to-peer file sharing program to download a file containing known child pornography. Agent Barlow identified the Internet Protocol (IP) address that had shared the file and obtained a subpoena for the subscriber information. Verizon's records indicated that Dridi was the owner of the IP address and provided his address. The OAG confirmed through PennDOT and other records that Dridi was the resident of the address in question.

Subsequently, on August 2, 2016, Agent Barlow applied for a search warrant for the address. In the Affidavit of Probable Cause (Affidavit) attached to the search warrant application, Agent Barlow described his investigation in detail. He explained that peer-to-peer file sharing programs "allow groups of computers, using the same file sharing network and protocols, to transfer digital files from one computer system to another while connected to a network, usually on the Internet." Affidavit at 1. The peer-to-peer file sharing programs allow users to make their digital libraries available to other users and are commonly used to disseminate child pornography. Id. Peer-to-peer file sharing programs can download a single file from multiple computers; however, the program used by the OAG downloads an entire file from a single computer and identifies that device's IP address for investigation. Id. at 2.

During his investigation, Agent Barlow made a direct connection to a device at an identified IP address and downloaded a file containing child pornography. Id. at 3. The device was using uTorrent 3.4 software to share the file. Id. Agent Barlow's software logged the start and end time for the download, the file name and size, and the IP address for the computer sharing the file. Agent Barlow then used the American Registry of Internet Numbers to determine that the IP address was provided by Verizon and issued a subpoena for the subscriber information. As noted above, Verizon complied with the subpoena and identified Dridi as the subscriber and provided his home address and contact information.

The Affidavit further explained that files may be stored in "free space or slack space" on a hard drive long after it has been deleted by a user, and a computer may also keep records of deleted data and files that were viewed through the internet. Id. at 4. Thus, it is possible for investigators to recover files and data that had been deleted or viewed months or years prior. Id. Agent Barlow averred that "searching computerized information for evidence or instrumentalities of crime commonly requires investigators to seize all of a computer system's input/output peripheral devices, related software, documentation, and data security devices (including passwords) so that a qualified computer expert can accurately retrieve the system's data in a laboratory or other controlled environment." Id. at 5. It was necessary to search not just computers, but all magnetic storage devices, external storage devices, and "computing systems sometimes referred to as central processing units (CPU)." Id.

Based on all of this information, the application for the search warrant specified the items to be searched for and seized as follows:

All computer hardware, including, but not limited to, any equipment which can collect, analyze, create, display, convert, store, conceal, or transmit electronic, magnetic, optical or similar computer impulses or data. Any computer processing units, internal and peripheral storage devices (such as fixed disks, external hard disks, discs, backup media, flash media, and optical storage devices), peripheral input/output devices (such as keyboards, printers, scanners, video displays, switches, and disc/media readers), and related communication devices such as network/internet devices, cables, and connections, recording equipment, as well as any devices, mechanisms, or parts that can be used to restrict access to computer hardware. These items will be seized and then later searched for evidence relating to the possession and/or distribution of child pornography.

Search Warrant, 8/2/16, at 1-2. Agents from the OAG executed the search warrant and seized three laptop computers and four cell phones from the residence. These items were seized from a room in the house that Dridi identified to agents as his bedroom.

Videos, images, internet search history terms, and other indicia of child pornography were recovered from one of the laptops and three of the cell phones. [(These cell phones were all smartphones. "A smartphone is a modern day cellular telephone with computer-like capabilities." Commonwealth v. Smith, 136 A.3d 170, 171 n.2 (Pa. Super. 2016))]. Several of the images of child pornography were synced across multiple cell phones through a shared Gmail account. The laptop identified Dridi as the system owner, with "Ali PC" as the laptop name and "Ali" as the username. The laptop also contained a picture of Dridi's green card and Social Security card. All images and videos were located in "unallocated space" on the devices, indicating that the user had deleted the files from the allocated space on the devices but they had been retained elsewhere by the system. The uTorrent 3.4 software that uploaded the video in April 2016 was not found on any of the devices.

Commonwealth v. Dridi, No. 723 EDA 2019, 2020 WL 3432711, at *1-2 (Pa. Super. filed June 23, 2020) (non-precedential decision) (emphasis added). On August 2, 2016, the Commonwealth charged Appellant with one count of Disseminating Child Pornography, fifteen counts of Possessing Child Pornography, and one count of Criminal Use of a Communication Facility.^[1]

On October 11, 2017, Appellant's initial trial counsel, Michael T. van der Veen, Esq., litigated a motion to suppress claiming that the search warrant was stale, overbroad, and lacked probable cause. The trial court denied the motion to suppress and proceeded to a jury trial, which concluded in a mistrial. Co-counsel Debra Rainey, Esq. and Matthew Boyd, Esq. from the Defender Association of Philadelphia represented Appellant during his new trial. On September 28, 2018, a jury convicted Appellant of the above-mentioned charges. On January 23, 2019, the court sentenced Appellant to an aggregate term of five to ten years' incarceration, followed by seven years' probation.

On June 23, 2020, this Court affirmed Appellant's judgment of sentence and on February 18, 2021, our Supreme Court denied Appellant's petition for allowance of appeal. Dridi, No. 723 EDA 2019, appeal denied, No. 357 EAL 2020 (Pa. filed Feb. 18, 2021).

Appellant filed a timely pro se PCRA petition and, on September 23, 2021, a counseled amended PCRA petition alleging ineffective assistance of trial and direct appellate counsel for (1) failing to aver in the motion to suppress that cell phone evidence should be suppressed because the search warrant lacked particularity when it did not specify cell phones, and (2) failing to properly preserve this issue on appeal by including it in a Pa.R.A.P. 1925(b) statement. The PCRA court issued a Rule 907 notice of intent to dismiss the PCRA petition without a hearing and on March 25, 2022, the PCRA court dismissed the petition.

Appellant filed a timely notice of appeal. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925. Prior to filing his brief to this court, and after the PCRA court issued its Rule 1925(a) opinion, Appellant obtained new counsel. In his brief to this court, Appellant challenges the ineffectiveness of trial and appellate counsel and raises new issues regarding the ineffectiveness of initial PCRA counsel.

In particular, Appellant raises the following issues for our review:

I. Should the prior attorneys have specifically challenged the search of the cell phones given that the search warrant either did not cover cell phones, or in the alternative, was lacking in particularity and probable cause with respect to cell phones?

II. Did trial counsel provide the ineffective assistance of counsel in failing to retain a competent computer expert for trial where the expert who testified at the prior trial provided critical testimony which dramatically undercut the prosecution's ability to prove that Appellant knowingly possessed or distributed child pornography and that expert would have testified similarly at the retrial?

III. Did trial counsel provide the ineffective

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