Commonwealth v. Dunkins, No. 1003 EDA 2019

• Decision Date: 12 February 2020
• Docket Number: No. 1003 EDA 2019
• Parties: COMMONWEALTH of Pennsylvania v. Alkiohn DUNKINS, Appellant
• Court: Pennsylvania Superior Court

229 A.3d 622

COMMONWEALTH of Pennsylvania

v.Alkiohn DUNKINS, Appellant

No. 1003 EDA 2019

Superior Court of Pennsylvania.

Argued December 3, 2019

Filed February 12, 2020

Michael J. Diamondstein, Philadelphia, for appellant.

Katharine R. Kurnas, Assistant District Attorney, Easton, for Commonwealth, appellee.

BEFORE: PANELLA, P.J., STABILE, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Appellant Alkiohn Dunkins appeals the judgment of sentence entered by the Court of Common Pleas of Northampton County after a jury convicted Appellant of Robbery, Conspiracy to Commit Robbery, Receiving Stolen Property, and Simple Assault.¹ Appellant claims the trial court erred in refusing to suppress wireless internet connection records that were obtained by campus police at Moravian College in a warrantless search. Appellant also challenges the sufficiency and weight of the evidence supporting his convictions. We affirm.

On February 2, 2017, at approximately 2:00 a.m., on the Moravian College campus in Bethlehem, Pennsylvania, two men wearing ski masks pretended to be campus police to gain access to the dorm room shared by Greg Farina and William Reilley, a Moravian student known to sell marijuana on campus. Notes of Testimony ("N.T."), Trial, 9/4/18, at 31-38; 9/5/18, at 152-57. When Farina opened the dorm door, one of the masked men punched Farina, causing him to fall. Id. The masked men held the students at gunpoint and demanded marijuana and the key to Reilley's footlocker. Id. The masked men accessed the footlocker and took approximately $1,000 in cash as well as a jar of marijuana. Id. Before leaving the dorm, the perpetrators hit Reilley and Farina on the sides of their heads. Id.

Several hours later, around 11 a.m., Reilley reported the robbery to campus officials. N.T., 9/4/18, at 39-40; 9/5/18, at 159. Campus Police Officer Thomas Appleman requested that Moravian's Director of Systems Engineering, Christopher Laird, analyze its wireless network (WiFi) data to compile a list of the students logged on to the network near the wireless access point in the dormitory building where Reilley and Farina resided.² N.T., Pre-trial motion Hearing, 4/19/18, at 40-43; N.T. Trial, 9/5/18, at 215-19. Campus officials discovered, at the time of the robbery, there were only three individuals logged onto the campus WiFi at that location that did not reside in that building. N.T., 9/5/18, at 218-19. Two of the three WiFi users were female. The male user was Appellant, who was also a Moravian student. N.T. Hearing, 4/19/18, at 44, N.T. 9/5/18, at 219.

Thereafter, Officer Appleman provided this data to Detective James Ruvolo of the Bethlehem Police Department, who took over the investigation. Reilley told Detective Ruvolo that Appellant previously "robbed" him by taking marijuana from him without payment in return. N.T., 9/4/18, at 41, 49. When Appellant was interviewed, he denied being in the Hassler dormitory since October 2016. Id. at 54.

Colin Zarzecki, who lived in in the dorm room next to Appellant's, told police that Appellant came to his room after midnight on February 3, 2017, "fanned out" a display of cash, and bragged that he obtained this money in a recent robbery. N.T., 9/5/18, at 102, 107. Appellant boasted that he and another individual posed as campus police officers to gain access to the victim's room and subsequently stole drugs and money from the victim's footlocker. Id. at 102-105, 124-25.

After Appellant was arrested and charged with the aforementioned offenses, Appellant filed a suppression motion, arguing that the campus police conducted an illegal search in obtaining the campus WiFi log-on data without first obtaining a warrant. At one of the suppression hearings held by the trial court, Moravian Systems Engineering Director Laird explained that, in order to utilize Moravian campus WiFi, each student must log on to the network with their individual username and password. However, at their initial log-on, students may choose to have their devices automatically log on to the campus WiFi without entering their credentials again. N.T., 4/19/18, at 27.

The parties also noted that Appellant had signed the Moravian Student Handbook when enrolling at the college, indicating that he accepted and understood Moravian's policies, including the following technology rules:

Logging in to or otherwise connecting to the campus network implies acceptance of this Moravian College ... Policy....

***

The institution's computing equipment and network resources are dedicated to Moravian business to enhance and support the educational mission of Moravian College. These resources include all computers, workstations, and multi-user computer systems along with local area networks and wireless networks via the Internet.

***

[A]ny data transmitted over institutional assets or connections made through institutional assets are included. The institution has the right to inspect information stored on its system at any time, for any reason, and users cannot and should not have any expectation of privacy with regard to any data , documents, electronic mail messages, or other computer files created or stored on computers within or connected to the institution's network . All Internet data composed, transmitted, or received through the Internet's computer system is considered part of the institution's records and, as such, subject at any time to disclosure to institutional officials, law enforcement, or third parties ...

N.T. 4/19/18, at 10-23; Defense Exhibit 1 (emphasis added). On April 26, 2018, the trial court denied Appellant's suppression motion.

At the conclusion of Appellant's trial, on September 5, 2018, the jury convicted Appellant of Robbery, Conspiracy to Commit Robbery, Receiving Stolen Property, and Simple Assault. On November 21, 2018, Appellant filed a motion for extraordinary relief, which was subsequently denied. On January 4, 2019, the trial court imposed an aggregate sentence of five to ten years' imprisonment. On January 10, 2019, Appellant filed a post-sentence motion, which the trial court denied on March 1, 2019. Appellant filed a timely notice of appeal on March 19, 2019 and complied with the trial court's direction to file a Concise Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b).

Appellant raises the following issues for our review on appeal:

1. Whether the Court erred by denying [Appellant's] Motion to Suppress the cell site location information purportedly tracking his cellphone and/or his Motion for Extraordinary Relief requesting the same?

2. Whether the evidence at trial was insufficient to sustain the Commonwealth's burden with respect to all charges as there was insufficient evidence to indicate that [Appellant] conspired with another to commit the instant offense?

a. Whether there was sufficient evidence as to [Appellant's] identity as one of the perpetrators and/or conspirators?

3. Whether the verdict was against the weight of the evidence as while there was evidence that [Appellant's] cell phone was in the vicinity of the Robbery, there was no evidence that [Appellant] had the phone at the time of the Robbery nor was there any evidence that [Appellant] was present at the scene and the witness who proffered that [Appellant] admitted to a Robbery was unworthy of belief?

Appellant's Brief, at 10.

We first review Appellant's claim that the trial court erred in denying his suppression motion. Our standard of review is as follows:

Our standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court's factual findings are supported by the record, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous. Where, as here, the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.

Commonwealth v. Mbewe , 203 A.3d 983, 986 (Pa.Super. 2019) (citations and quotation marks omitted). In addition, "our scope of review from a suppression ruling is limited to the evidentiary record that was created at the suppression hearing." Commonwealth v. Rapak , 138 A.3d 666, 670 (Pa.Super. 2016) (citing In re L.J. , 622 Pa. 126, 79 A.3d 1073, 1087 (2013) ).

Appellant contends the campus police conducted an illegal search by accessing Moravian's wireless internet connection records without first obtaining a warrant. Appellant claims the officers invaded his right to privacy in his physical movements through cell site location information (CSLI).

The Fourth Amendment of the U.S. Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."

U.S. Const. amend. IV.³ Our courts have recognized that "[t]he protection of the Fourth Amendment does not depend on a property right in the invaded place but does depend on whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place. Commonwealth v. Cruz , 166 A.3d 1249, 1254 (Pa.Super. 2017) (quoting Commonwealth v. Brundidge , 533 Pa. 167, 172–73, 620 A.2d 1115, 1118 (1993) ).⁴

Appellant claims this case is controlled by Carpenter v. U.S. , ––– U.S. ––––, 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018), in which the U.S. Supreme Court found law enforcement officials...