Commonwealth v. Manivannan

• Decision Date: 04 May 2018
• Docket Number: No. 1661 MDA 2016,No. 1693 MDA 2016,1661 MDA 2016,1693 MDA 2016
• Citation: 186 A.3d 472
• Parties: COMMONWEALTH of Pennsylvania v. Ayyakkannu MANIVANNAN, Appellant Commonwealth of Pennsylvania, Appellant v. Ayyakkannu Manivannan
• Court: Pennsylvania Superior Court

186 A.3d 472

COMMONWEALTH of Pennsylvania

v.Ayyakkannu MANIVANNAN, Appellant

Commonwealth of Pennsylvania, Appellant

v.Ayyakkannu Manivannan

No. 1661 MDA 2016

No. 1693 MDA 2016

Superior Court of Pennsylvania.

Argued February 7, 2018

Filed May 04, 2018

Reargument Denied July 7, 2018

James M. Becker, Philadelphia, for appellant.

John J. Powell, Philadelphia, for appellant.

Michael Osterberg, Assistant District Attorney, Bellefonte, for Commonwealth, appellee.

BEFORE: STABILE, J., NICHOLS, J., and RANSOM^* , J.

OPINION BY RANSOM, J.:

In this consolidated appeal, Ayyakkannu Manivannan ("Appellant"), appeals from the judgment of sentence of four and one-half years of probation, imposed June 10, 2016, following a jury trial resulting in his conviction of five counts of unlawful use of computer and one count of harassment.¹ The Commonwealth cross-appeals. After careful review, we are constrained to vacate the judgment of sentence, to remand for a new trial, and to dismiss the Commonwealth's appeal. Additionally, we grant Appellant's Application for Leave to File Post–Submission Supplemental Authority.

In August 2011, Faith Beck began to work with Appellant at the United States Department of Energy's ("DOE") National Energy Technology Laboratory ("NET Lab") located in Morgantown, West Virginia, where Appellant also lives. Notes of Testimony (N.T.), 4/18/16, at 64–68, 90, 127–28. The two began a romantic relationship, and Ms. Beck occasionally used Appellant's computer to access her email account during this time. Ms. Beck did not give Appellant permission to access her email account. In 2013, Appellant helped Ms. Beck enroll in a one-year graduate program at Pennsylvania State University and secured funding for tuition through DOE. Id. at 65–67. Ms. Beck continued to work at the NET Lab with Appellant. Id. at 91. In November 2013, Ms. Beck began a romantic relationship with fellow student Partha Mishra and endeavored to end her romantic relationship with Appellant. Id. at 68, 78.

By January 2014, Appellant was repeatedly contacting Ms. Beck daily by phone call, text message, email, and Skype. Id. at 71–72, 80–89, 92–94. One night, Ms. Beck and Mr. Mishra were sitting in her car in a parking lot when Appellant pulled up behind them. Id. at 95–99. Appellant followed Ms. Beck as she drove to a local police station and pulled over as she did, whereupon she told him to stop following her. Id. Ms. Beck reported the incident to Officer Jessica Meyer of Pennsylvania State University Police and explained that Appellant was repeatedly contacting her. Id. at 99; N.T., 4/19/16, at 8–9.

Ms. Beck also testified that, in March 2014, Appellant sought a meeting with her under the guise that she was meeting her supervising professor, only to find Appellant to be the sole other person in attendance. N.T., 4/18/16, at 115. Following this incident, Ms. Beck secured funding for her program from the University so that she no longer needed to work at NET Lab under the supervision of Appellant. Id. at 102–13. In April 2014, she informed the DOE that she would not be returning to her position at NET Lab. Id. at 112, 115.

Ms. Beck testified that, in July 2014, she and Mr. Mishra planned a weekend trip to Falling Water, located approximately an hour away from Morgantown, West Virginia. Id. at 119; Commonwealth's Exhibit 57. At Falling Water, she was advised by two individuals with whom she was familiar that Appellant was there. Id. at 120. Suspicious that Appellant's presence was more than mere coincidence, Ms. Beck spoke with her mother and learned that the accommodation information for the weekend trip was forwarded to her mother from Ms. Beck's email address, although Ms. Beck did not send the emails herself. Id. at 121–29. Two emails were forwarded to Ms. Beck's mother. Id. The first email, dated July 2, 2014, at 10:25 p.m., contained a room reservation at a bed and breakfast for the night before the trip to Falling Water. Id. The second email, dated July 2, 2014, at 1:43 a.m., contained reservation details for a hotel room on the date of the visit to Falling Water. Id. A third email, sent on July 2, 2014, was forwarded to Ms. Beck's sister and contained a G-chat instant message conversation between Ms. Beck and Mr. Mishra that contained sexual content. Id. at 129–39.

Upon investigating her email account settings, particularly her account history, Ms. Beck and Mr. Mishra discovered that from June 22, 2014, to July 18, 2014, her account was accessed twenty-one times from thirteen different Internet Protocol ("IP") addresses located in: Boston, Massachusetts; Boulder, Colorado; Houston, Texas; Metairie, Louisiana; San Francisco, California; San Jose, California; Los Angeles, California; and Morgantown, West Virginia. Id. at 121–26, 260–63. They took screenshots of this suspicious account activity, and Mr. Mishra forwarded the screenshots to Officer Meyer. Id. at 257–68. Of note, Ms. Beck's email account was accessed five times from IP address 98.239.142.39 in Morgantown. Id. at 261; N.T., 4/19/16, at 19. Each of these screenshots feature the designation "Comcast.net" under the IP address. See Commonwealth's Exhibits 60–64.

Officer Meyer testified that upon receiving the screenshots from Mr. Mishra, she utilized the website Geektools.com to determine the internet providers corresponding to the thirteen IP addresses identified in the screenshots. N.T., 4/19/16, at 13–18. Appellant objected to any reference to that website as hearsay, but the trial court overruled the objection. Id. at 14.

Based upon her search results from Geektools.com, Officer Meyer secured from the trial court a series of particularized subpoenas to each internet provider for the subscriber information during the dates and times reflected on the corresponding screenshots. Id. at 15–19. Comcast was the only internet service provider that returned subscriber information in response to the subpoenas. Id. at 18–19. Specifically, the search on Geektools.com identified Comcast Cable Communications, Inc. ("Comcast") as the internet provider for the IP address 98.239.142.39 in Morgantown, West Virginia. Id. The trial court overruled Appellant's timely objection that printouts and content from Geektools.com were inadmissible hearsay. Id. at 14.

During Officer Meyer's testimony, the Commonwealth attempted to introduce Exhibit 10, a faxed letter on Comcast letterhead addressed to Officer Meyer, and which outlined that IP address 98.239.142.39 belonged to subscriber Manivannan on July 12, 2014, at 9:34 a.m. and 10:40 a.m.; July 17, 2014, at 1:32 a.m. and 12:47 p.m.; and July 18, 2014, at 11:25 a.m., five of the times Ms. Beck's account was accessed without her permission. Id. at 19; Commonwealth's Exhibit 10. These five instances of access were cited as the basis for Appellant's five, unlawful use of computer charges. See Amended Information, 4/6/2016. Additionally, the letter listed Appellant's home address in Morgantown as the service address and included "Ayyakkannu" as one of the email user names associated with the account. Commonwealth's Exhibit 10. Dated August 29, 2014, the letter did not indicate an individual author and was signed "Comcast Legal Response Center." Id. The date stamp on the letter indicates it was sent to Pennsylvania State University Police on September 4, 2014. Id.

Appellant timely objected to the admission of the Comcast letter and argued that (1) no individual author of the Comcast letter was identified in the unsigned document, which made the veracity of the document itself dubious, and (2) an original of the document was required under Pa.R.E. 1002. N.T., 4/19/16, at 19–24.

As certification for the Comcast letter, the Commonwealth provided the trial court with a separate, faxed, boilerplate Pa.R.E. 902(11) declaration dated April 18, 2016, that gave no context for the document its signor purported to certify. See Declaration by Custodian or Other Qualified Person Pursuant to Pa.R.E. 902(11) :

Domestic Records of Regularly Conducted Activity, 4/18/16. The boilerplate declaration made no reference to Comcast or the Comcast letter, was not attached to same, and the date stamp indicated the document was faxed to Pennsylvania State University Police on April 18, 2016. Id. The Commonwealth presented no evidence that certification accompanied the Comcast letter.

Appellant also timely objected to the certification, because (1) it was tendered separately from the letter and may not even belong to the letter and (2) an original of that document was likewise required under Pa.R.E. 1002. N.T., 4/19/16, at 19–24; see also Appellant's Brief at 19.

At sidebar, the Commonwealth argued that the Comcast letter was admissible as a business record pursuant to Pa.R.E. 902(11). N.T., 4/19/16, at 19–24. The trial court overruled Appellant's objection, and the Comcast letter was admitted into evidence. Id.

Receipts submitted to the DOE established that Appellant was on a business trip in Los Angeles from June 29, 2014, to July 6, 2014, which corresponded to the four times Ms. Beck's email was accessed from Los Angeles and once from an indeterminable location in the state of California. N.T., 4/18/16, at 279, 282–88.

In April 2016, Appellant was convicted of the aforementioned charges. N.T., 4/19/16, at 297. At Appellant's sentencing hearing in June 2016, Appellant made an oral motion for extraordinary relief in the form of a new trial, averring the admission of the Comcast letter and certification was improper, as originals of the documents were required pursuant to Pa.R.E. 1002 and 1003. N.T., 6/10/16, at 3–8. The trial court denied the motion for extraordinary relief. Id. at 9. Appellant was sentenced to six months of probation on the misdemeanor harassment and two years of probation on each of the five felony computer convictions, with the harassment sentence and two of the computer sentences to run consecutively, for a total term of four and one-half years of probation. Id. at 18–26. Over the...