Commonwealth v. Green

204 A.3d 469

COMMONWEALTH of Pennsylvania

v.Eric Lavadius GREEN, Appellant

No. 242 MDA 2018

Superior Court of Pennsylvania.

Submitted October 9, 2018

Filed February 12, 2019

Nicole J. Spring, Public Defender, Williamsport, for appellant.

Neil T. Devlin, Assistant District Attorney, Williamsport, for Commonwealth, appellee.

BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

OPINION BY McLAUGHLIN, J.:

Eric L. Green was found guilty of 99 counts of sexual abuse of children (possession of child pornography) and one count of criminal use of communication facility.¹

He was charged after the Pennsylvania State Police uncovered evidence that he had downloaded child pornography using a peer-to-peer file-sharing network known as BitTorrent. He challenges the denial of his suppression motion, the sufficiency and weight of the evidence, the ineffectiveness of counsel, the reasonableness of his sentence, and the constitutionality of applying to him the Sex Offender Registration and Notification Act, 42 Pa.C.S.A. § 9799.10 - 9799.42, ("SORNA"). We affirm.

In January 2015, the Pennsylvania State Police applied to a magisterial district judge for a search warrant for Green's residence. The affidavit of probable cause in support of the search warrant stated that the affiant, Corporal Christopher Hill, based his affidavit on information received from Corporal Gerald Goodyear. Affidavit of Probable Cause at ¶ 2. According to the affidavit, in December 2014, Corporal Goodyear identified a computer that was sharing images of child pornography on the BitTorrent file-sharing network, and had downloaded contraband digital files through BitTorrent. Id. at ¶ 20. The affidavit described one of the files as depicting a nude prepubescent girl:

Name of file: ism-024-174.jpg

Type of file: Image

Description: This image file depicts a prepubescent girl approximately 12 years old sitting on a rocky outcropping in front of an unidentified body of water. The girl has brown hair which is braided and is wearing a multicolored sheer piece of fabric and various bracelets on both wrists. She appears otherwise nude and has her legs spread so as to display her genital area which is clearly visible. In the upper left corner of the image is printed a company logo "LS Island."

Id.

The affidavit continues that the IP address that downloaded the described file was assigned to the internet service provider Comcast Cable Communications. Id. at ¶ 21. Pursuant to a court order, Comcast identified Green as the subscriber assigned to that IP address. Id. at ¶¶ 22. Comcast also provided Green's address. Id.

The affidavit described the BitTorrent file sharing process as follows. BitTorrent is a type of peer-to-peer file-sharing network that allows users to connect to each other through the internet and share digital files between users on the network. Id. at 11. To use BitTorrent, a user installs on a computer a piece of software, known as client software, that enables access to BitTorrent. Id. The person may then access a "torrent" file, which is not the actual digital content, but rather "directs users to where the contraband files do exist." Id. at ¶¶ 12, 14. A "torrent" file typically identifies at least one computer, known as a "tracker," that coordinates the users that are sharing the files described by the "torrent." Id. at ¶ 14. A user interested in obtaining child pornographic images queries a "tracker" with an appropriate search term and the tracker identifies possible matching "torrent" files. Id. at 15. The user then selects files, which the user then downloads directly from the computers sharing them. Id.

The affidavit also provided background information about police investigations involving computers and the internet. It defined various terms, such as internet protocol ("IP") addresses, file sharing, and peer-to-peer networks. Id. at ¶ 6. The affidavit then explained that "searching and seizing information from computers often requires investigators to seize all electronic storage devices (along with related peripherals) to be searched later by a qualified computer expert in a laboratory or other controlled environment." Id. at 8. The affidavit explained that such seizures, subject to later searches, were necessary in order to have access to all hardware and software that may have been used to create data and thus ensure proper data retrieval. Id. Furthermore, in the corporals' experience, such computer searches and data retrieval can be complex and time-consuming. Id. at 9.

The affidavit also described Corporal Hill's and Corporal Goodyear's training and experience. Corporal Hill had taken classes on crimes involving handheld computing devices, basic cell phone investigations, cell phone "interrogations," internet investigations, basic data recovery and acquisition, and intermediate data recovery and analysis. Id. at ¶ 3. He had training specifically in investigations involving BitTorrent, and had taken the basic computer forensic examiners course and the Internet Crimes Against Children investigative techniques training program. Id. at ¶ 3. The affidavit also stated he had work experience in obtaining search warrants for electronic equipment, including cell phones, computers, personal digital assistants, and tablets. Id. Corporal Goodyear was experienced in investigations, including undercover investigations, into crimes in which suspects used computers to facilitate criminal activity. Id. at ¶ 5. He had thus become familiar with techniques and methods used to conceal criminal activity from law enforcement. Id.

The affidavit listed practices that, based on Corporal Hill's experience, were often common to individuals involved in the file sharing and downloading of child pornography. Such practices included that they "usually maintain their collections at a secure, private location for long periods of time." Id. at 23.

The court granted the warrant to search Green's home. The warrant identified the items troopers could search for and seize, including:

Any and 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, eternal hard disks, floppy disk drives, and diskettes, tape drives, tape, and optical storage devices), peripheral input/output devices (such as keyboard, printers, scanners, plotters, video display monitors, and optical readers), and related communication devices such as modems, 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 . This search is also to include any and all cellular phones, including, but not limited to, any cellular device that can collect, analyze, create, convert, store, conceal, transmit electronic data, and the items associated with any cellular device such as power cords, bases, sim cards, memory cards.

Search Warrant, at 1-2 (emphasis added). The magistrate district judge granted the search warrant.

Troopers executed the search warrant on Green's home and found a Samsung Galaxy Note 2 phone, which had BitTorrent client software called uTorrent installed on it. Green told the troopers that the phone was his and he was the only person that used the phone. N.T., 3/6/17, at 63. The troopers arrested Green and charged him with four counts of sexual abuse of children and two counts of criminal use of a communication facility. The prosecution later amended the charges by agreement of the parties to add 96 counts of each offense, for a total of 100 counts of sexual abuse of children and 98 counts of criminal use of a communication facility.

Before trial, Green moved to suppress, arguing the warrant was overbroad and the affidavit failed to provide probable cause that the electronic device used to download the material would be found at the location searched. He also contended that it did not provide probable cause that the image was child pornography. N.T., 6/30/16, at 4; Omnibus Pre-Trial Motion, filed Apr. 14, 2016. The trial court denied the motion.

At Green's non-jury trial in March 2017, the parties stipulated that troopers had seized the phone at issue from Green's residence, that it was Green's phone, and that it contained images of pornography. N.T., 3/6/17, at 8-9. They also stipulated "that any pictures ... shown during the course of the trial that were taken during the execution of the search warrant [were] authentic." Id. at 9. The Commonwealth then proceeded with its case and presented the photographs through the testimony of Dr. Pat Bruno, who is board certified in general pediatrics and child abuse pediatrics. Id. at 12-13. The trial court found Dr. Bruno qualified to offer his opinion as to the age of the persons depicted in the photographs, and he testified that, in his opinion, the individuals depicted in the photographs were under the age of 14. Id. at 14-30. On cross-examination, Dr. Bruno agreed that the photographs depicted between six and nine different individuals, but on re-direct, he identified at least 12 different individuals. Id. at 31; 35-46. The Commonwealth then admitted the photographs into evidence. Id. at 78. Defense counsel did not object. Id.

Corporal Hill testified about the investigation and said that Green admitted to the troopers while they were executing the warrant that he was the only person that used the phone discovered at his residence. Id. at 62-63. Corporal Hill also said that Green claimed during the execution of the warrant that the images would pop-up on his screen and "he would quickly click them away to get rid of them." Id. at 63. Corporal Hill, however, testified that he has been involved with "dozens" of...