Com. v. Sodomsky

• Decision Date: 05 December 2007
• Docket Number: No. 1953 MDA 2005.,1953 MDA 2005.
• Citation: 939 A.2d 363
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Kenneth F. SODOMSKY, Appellee.
• Court: Pennsylvania Superior Court

939 A.2d 363

COMMONWEALTH of Pennsylvania, Appellant v. Kenneth F. SODOMSKY, Appellee.

No. 1953 MDA 2005.

Superior Court of Pennsylvania.

Argued January 9, 2007.

Filed December 5, 2007.

Reargument Denied February 7, 2008.

Adrian S. Shchuka, Assistant District Attorney, Reading, for Commonwealth, appellant.

Paul D. Boas, Pittsburgh, for appellee.

BEFORE: BENDER, BOWES and COLVILLE^*, JJ.

OPINION BY BOWES, J.:

¶ 1 The Commonwealth appeals from the trial court's November 9, 2005 order suppressing evidence.¹ After careful review, we reverse.

When reviewing a suppression order we follow a clearly defined standard of review and consider only the evidence from the defendant's witnesses together with the evidence from the prosecution that, when read in the context of the entire record, remains uncontradicted. We are bound by the trial court's findings of fact if those findings are supported by the record, but are not bound by its conclusions of law. Commonwealth v. Chernosky, 874 A.2d 123 (Pa.Super.2005).

Commonwealth v. Steward, 918 A.2d 758, 759 n. 1 (Pa.Super.2007).

¶ 2 The evidence of this matter reveals the following pertinent facts. Richard Kasting was the senior sales assistant in the technology department of the Circuit City Store located on Woodland Road, Wyomissing, Berks County. Mr. Kasting testified that on October 15, 2004, Appellee, Kenneth Sodomsky, came to Circuit City and asked Mr. Kasting to install an optical drive and DVD burner into his computer. The work order that Appellee executed that day authorized Circuit City to install and configure the optical drive unit and DVD in his desktop computer.

¶ 3 In accordance with store practice, Mr. Kasting summarized to Appellee "what is done during the installation." N.T. Suppression Hearing, 9/28/05, at 16. Appellee was informed that as part of the installation process, the installer would "have to make sure [the DVD burner] works." Id. at 17. There is no indication that Appellee asked how the DVD burner would be tested or in any manner restricted what procedure could be utilized to confirm the burner's operability. Appellee requested that the work be performed on an expedited basis, and Mr. Kasting instructed him to return in approximately one hour.

¶ 4 Toby Werner was in the middle of the installation process when Stephen Richert, the head of personal computer repairs at that Circuit City, arrived. Mr. Richert testified that the DVD drive was installed when he arrived in the department, but the software had not yet been installed. Mr. Richert explained that all DVD burners and players were accompanied by software.² Mr. Richert testified specifically that at Circuit City, with "every installation" of the hardware, "any supplementary software" was installed both as a courtesy "and to make sure when it leaves the store, we can guarantee that it is working." Id. at 21.

¶ 5 After the software was installed, Mr. Richert performed a general search for a video to test the new DVD drive. More specifically, he testified as follows:

Well, after we installed the software, we did a generic search of the PC where you click on the start menu, you click on search, and this being the windows XP, a search box comes up and it is custom made to this operating system. In this case, this system, it's about half way down the screen on the left-hand side there's a search, and you can enter — in this case, you could enter a specific name of a file that you're looking for and find it.

We weren't looking for anything specific, so we did a generic search. Below the field where you could enter the name of a file that you are looking for, you can click on the generic boxes listed, picture, movie or if you click it, it does a general search of the whole PC and finds any of that type of objects that you're looking for. In this case, we clicked movies or video, and it brings up all the different formats of videos.

There are many different types of video formats. There's M-peg, MPG-4, AVI, Quick Time. Any types of those files, if used to place on Windows Media Player, which is a program that's inherent to PC when running windows XP or to the DVD software, in certain circumstances, if you install the software and it wasn't installed properly or you didn't receive notification and you try to play the files or play a DVD movie on the PC, you get distortion that isn't necessarily seen right away when you install it.

So, in this case, we wanted to make sure that all types of files were working fine so that you wouldn't get any type of errors. When you install the different type of software, there's something called code X. It's a little piece of software inside the PC that helps the PC better understand and translate video signals through different players.

So, in this case, if we play a movie file and we get distorted colors or blurring of the image or a ghosting effect where all color is inverted, we know there is a problem with the installation and we have to find it and fix it. If there is a software update, we have to uninstall and reinstall it, if there was an issue.

Id. at 22-23.

¶ 6 Mr. Richert testified that once the search button was activated for a given object, the computer automatically loaded the requested files onto the screen, which continued to enlarge by itself. Thus, after the search was initiated, Mr. Richert did not manipulate the computer further to see the entire list of videos Id. at 30-31. The first few video titles that appeared from Appellee's video list were innocuous. However, as the video log continued to compile on the computer screen, which occurred without any human intervention, some of the files appeared to be pornographic in nature due to their titles which included masculine first names, ages of either thirteen or fourteen, and sexual acts. Mr. Richert clicked on "the first one" that appeared questionable, and the video contained the lower torso of an unclothed male, and when a hand approached the male's penis, Mr. Richert immediately stopped the video. Id. at 24. Mr. Richert contacted his manager and then telephoned the Wyomissing police.

¶ 7 During cross-examination, Mr. Richert admitted that he had been told by a Pennsylvania State Police Officer to contact police if he ever ran across what appeared to be child pornography while at work. At the time, Mr. Richert was taking a course at a local college and hoped to enter the law enforcement field.

¶ 8 Wyomissing Police Detective George Bell and two other police officers responded to the call and viewed the same video clip. When Appellee arrived to retrieve his computer, Detective Bell informed him that his computer was being seized because police suspected that it contained child pornography. Appellee responded that he knew what they had found and that his "life was over." Id. at 87. Police took the computer to the police station, obtained a warrant to search it, and discovered child pornography.

¶ 9 On appeal, the Commonwealth maintains that the trial court erred in concluding that Appellee retained a privacy interest in the computer because he volitionally relinquished any expectation of privacy in that item by delivering it to Circuit City employees knowing that those employees were going to install and test a DVD drive. We agree in part with this contention.

¶ 10 We begin our discussion with Commonwealth v. Shoatz, 469 Pa. 545, 366 A.2d 1216 (1976), which extensively analyzes whether individuals have the right to contest the search of their personal property after they have abandoned a privacy interest in that item. In Shoatz, police were investigating a report that three men were acting suspiciously and appeared to be preparing to burglarize a store. Police initiated surveillance of the threatened premises and shortly thereafter observed three men, two of whom were carrying suitcases, appear in an alley adjacent to the store. One of the officers approached the men and asked to speak to them. The two men who were carrying suitcases dropped them, and all of the men fled. Police searched the suitcases and discovered illegal weapons. The defendants, who were immediately apprehended, raised constitutional objections to the search of their suitcases. Our Supreme Court concluded that when the defendants dropped their suitcases and ran, they abandoned that property and thus, were not entitled to contest the search.

¶ 11 The Court noted that Pennsylvania has adopted the theory of abandonment, which applies as long as improper police conduct did not induce a defendant's desertion of his personal property. Pursuant to this legal construct, when an individual evidences an intent to relinquish control over personal property, he or she has abandoned a privacy interest in property and cannot object to any ensuing search of the item by police. Abandonment revolves around the issue of intent, which is determined from words, acts, and all relevant circumstances existing at the time the property is purportedly deserted. Accord Commonwealth v. Sanders, 407 Pa.Super. 270, 595 A.2d 635, 638 (1991) ("whether a person reasonably may expect that his or her possessions shall be free from unwarranted governmental intrusion depends on the facts and circumstances").

¶ 12 As the Shoatz Court explained, "The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search." Shoatz, supra at 553, 366 A.2d at 1220.

¶ 13 The theory of abandonment is extrapolated from the United States Supreme Court's observation that "the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in...