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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