Com. v. Copenhefer

• Decision Date: 18 March 1991
• Docket Number: No. 61,61
• Citation: 526 Pa. 555,587 A.2d 1353
• Parties: , 59 USLW 2619 COMMONWEALTH of Pennsylvania, Appellee, v. David C. COPENHEFER, Appellant. W.D. Appeal 1989.
• Court: Pennsylvania Supreme Court

Page 1353

587 A.2d 1353

526 Pa. 555, 59 USLW 2619

COMMONWEALTH of Pennsylvania, Appellee, v. David C. COPENHEFER, Appellant.

No. 61 W.D. Appeal 1989.

Supreme Court of Pennsylvania.

Argued Sept. 25, 1990.

Decided March 18, 1991.

[526 Pa. 558] Timothy J. Lucas, Erie (court-appointed), for appellant.

William R. Cunningham, Dist. Atty., James K. Vogel, First Asst. Dist. Atty., Erie, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION OF THE COURT

FLAHERTY, Justice.

In this appeal from the imposition of a death sentence, appellant David C. Copenhefer presents the novel claim that state acquisition of documents he mistakenly thought he had deleted from his computer was an impermissible intrusion on his right of privacy. He also attacks trial counsel's effectiveness due to his failure to challenge certain incriminating statements made by appellant, and claims that arbitrary jury proceedings during the penalty phase of his trial require commutation of his death penalty to life in prison.

Appellant was convicted of first-degree murder for kidnapping the wife of a bank executive, demanding a ransom, then killing her. Although he does not allege that the evidence is insufficient to sustain the verdict against him, this Court is required in capital cases to review the sufficiency of the evidence. Commonwealth v. Zettlemoyer, 500 Pa. 16, 26 n. 3, 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). The applicable standard of review is whether, viewing all the evidence in the light most favorable to the Commonwealth as verdict winner, a jury could find every element of the crime beyond a reasonable doubt. Commonwealth v. Bryant, 524 Pa. 564, 567, 574 A.2d 590, 592 (1990).

Viewed in accordance with that standard, the evidence presented at trial established the following facts. On June 16, 1988, Sally Weiner received a telephone call purportedly from a congressman's office asking that she meet with the caller to discuss arrangements for the presentation of a civic award to her husband. The next day, around noon, she drove to the agreed meeting place, parked her car, and was never seen again alive. Several hours later, her husband, Harry, manager of the Corry office of Pennbank, received a telephone call playing a recorded message from his wife telling him she had been kidnapped and that the kidnapper demanded ransom money from the bank. Mr. Weiner was directed to retrieve a duffel bag from the parking lot outside his bank; the bag contained additional threats and instructions. Mr. Weiner called a vice president of the bank, as well as the bank's security office, local police, state police, and the FBI. Mr. Weiner never received the additional radio instructions necessary to follow the directions contained in the duffel bag and therefore did not comply with the kidnapper's demands.

Sally Weiner's body was discovered two days later on June 19, 1988, in a rural area north of her home. She had died as the result of a gunshot wound to the back of her head.

Initial investigations by the FBI, state police, and local police resulted in the discovery of a series of computer-generated notes and instructions, each one leading to another, which had been concealed at various hiding places in and around Corry, Pennsylvania. The investigation also produced several possible suspects, including appellant, David Copenhefer, who owned a nearby bookstore, had had unproductive transactions with Mr. Weiner's bank, and apparently had bad personal relations with the Weiners.

An examination of trash discarded from appellant's store revealed drafts of the ransom note and directions. Subsequent search warrants resulted in seizure of incredibly comprehensive evidence against appellant. This included evidence tying appellant's fingerprints, computer, weapons and ammunition, clothing, automobile, and materials from his home and office to the victim or the murder site.

His fingerprints appeared on the original ransom note and on some of the hidden notes. Police discovered rough drafts of the ransom note, a map of the hidden notes, as well as the notes and directions themselves in appellant's handwriting, some of which bore his fingerprints. Appellant had a collection of guns, including two which might have fired the fatal bullet. He also had glazier ammunition, a nonstandard composition designed to fragment on impact so that after entering a body it will not exit and injure another person, of the type used to murder Mrs. Weiner. A metal rod from his home had been used to secure one of the hidden notes. Crepe paper torn from a roll at his store had been used to help secure another note. Human female skin tissue was found on his clothing. Tread marks matching appellant's automobile tires were found at one hiding place and at the murder scene. Finally, appellant's computer contained a series of drafts and amendments of the texts of the phone call to Mrs. Weiner on Thursday, the phone call to Mr. Weiner on Friday, the ransom note, the series of hidden notes, and a twenty-two point plan for the entire kidnapping scheme.

Taken together, the circumstantial evidence presented at appellant's trial pointed overwhelmingly to his guilt. We conclude that there is sufficient evidence to sustain the verdict against him.

Appellant's first argument, to be fully understood, requires some knowledge of computer terminology and technology. Appellant, after using his computer to draft documents related to the kidnapping and ransom of Mrs. Weiner, attempted to erase or delete them from his computer's memory. In fact, what he accomplished was to delete the names of the documents from the directory or index of files contained in the computer's memory. But employing the "delete" function on his computer did not actually eliminate the files from his computer's internal "hard drive." The files remained in the computer's memory until subsequent usage might have required the hard-drive storage space occupied by the "deleted" files, at which time the files would have been written over by new data and thereby displaced. In appellant's case, however, subsequent usage never displaced the files in question and they remained in the memory of his computer.

There are software programs designed to retrieve such documents from a computer's hard drive after they have been deleted from directories of files in storage. FBI agent Al Johnson, a computer expert, employed such a software program to delve into appellant's computer and retrieve the files which appellant mistakenly believed he had destroyed.

Appellant now argues that even though his computer was validly seized pursuant to a warrant, his attempted deletion of the documents in question created an expectation of privacy protected by the Fourth Amendment. Thus, he claims, under Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), and its progeny, Agent Johnson's retrieval of the documents, without first obtaining another search warrant, was unreasonable under the Fourth Amendment and the documents thus seized should have been suppressed.

Appellant appears to be arguing that there is a constitutionally significant difference between 1) intentionally storing a document in a personal computer's memory and 2) unintentionally leaving the document in the computer's memory by failing to delete it properly. In the first instance, a warrant authorizing seizure of the computer would authorize reproduction of any documents stored therein. Appellant argues that his attempted deletion or destruction of the documents creates a new and different legally and constitutionally protected right of privacy, requiring a second or additional warrant prior to conducting a search. He informs us that this is a question of first impression, never having been addressed directly by any appellate court in the country.

We cannot accept appellant's argument. A defendant's attempt to secrete evidence of a crime is not synonymous with a legally cognizable expectation of privacy. A mere hope for secrecy is not a legally protected expectation. If it were, search warrants would be required in a vast number of cases where warrants are clearly not necessary. Although we are aware of no cases addressing appellant's specific argument, many analogous situations do not require police officers to obtain a second search warrant.

A paper tablet, seized pursuant to a valid search warrant, may be subjected to scientific and physical manipulation and analysis without a second search warrant. Appellant would argue that if the owner of the tablet had removed and destroyed the top page on which he had written a message, a second search warrant would be required to permit the state to decipher the message by enhancing the second-page indentations caused by the pressure of the pen upon the missing top page. Yet no one would deny that a second search warrant is not required in those circumstances despite the writer's obvious attempt to mask his message, as his hope for privacy does not amount to a legally protected expectation of privacy.

The same would be true of a diary recorded in a private code. If we accepted appellant's argument, after seizing the diary pursuant to a valid search warrant, the state would be obligated to obtain a second warrant before it could attempt to read the diary by deciphering the code. Yet the diarist's obvious attempt to achieve secrecy does not create a legally protected expectation of privacy nor the need to obtain a warrant before subjecting legally seized physical evidence to scientific testing and analysis to make it divulge its secrets.

These examples prove the fallacy in appellant's argument. An attempt to destroy evidence is not equivalent to a legally protected expectation of privacy. Appellant's unsuccessful attempt to delete documents or files from his computer did not create a legally protected...