The opinion
J-S10044-26
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
YEURIS ALMONTE-SENA :
:
Appellant : No. 746 MDA 2025
:
Appeal from the PCRA Order Entered May 27, 2025
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0001226-2022
BEFORE: DUBOW, J., BECK, J., and BENDER, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 11, 2026
Appellant, Yeuris Almonte-Sena, appeals from the May 27, 2025 order
denying his first petition filed under the Post Conviction Relief Act (PCRA).1
We affirm.
The PCRA court summarized the relevant facts and procedural history
as follows:
Law enforcement began investigating [Appellant] in February[,]
2021[,] after receiving a cybertip indicating that a user had
uploaded five videos/images of child pornography to a Dropbox
account. The cybertip provided the [internet protocol (“IP”)]
address for the device used to upload the files and identified the
user as having the screenname “Yeuris Almonte” and an email
address of “rdyeuris25@gmail.com.” Using the location
information associated with the IP address, the District Attorney’s
Office issued an administrative subpoena, which investigators sent
to Comcast—the applicable internet service provider—to request
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1 42 Pa.C.S. §§ 9541-46.
J-S10044-26
the name and address of the subscriber associated with the IP
address. In response, Comcast disclosed that Maria Sena was the
subscriber, with a billing address of 110 Millstone Drive,
Mountville, Pennsylvania. Subsequent investigation revealed that
Ms. Sena’s son, [Appellant] Yeuris Almonte-Sena, resided at that
address.
When law enforcement went to the house to investigate further,
[Appellant] admitted that he had, in fact, viewed and uploaded
child pornography. [Appellant] was not charged, but an Officer
warned him that his conduct was criminal and could result in
charges being filed if he continued. Nonetheless, despite that
warning, law enforcement subsequently received additional
cybertips [regarding] the same IP address indicating that
[Appellant] continued to view and upload child pornography using
social media platforms including Facebook, Snapchat, and TikTok.
Investigators obtained and executed a search warrant for
[Appellant’s] residence in November of 2021[,] during which
[Appellant] provided his cell phone and laptop, as well as the
password to access his cell phone. Investigators found numerous
images and videos of suspected child pornography on
[Appellant’s] cell phone, at least three of which [Appellant] had
uploaded and sent in a WhatsApp messaging chat that had over
sixty participants. [Appellant’s] cell phone also contained the
email address associated with the Dropbox and Snapchat
cybertips, as well as the Facebook, Snapchat, and TikTok
applications identified in the cybertips.
On August 15, 2023, following a two-day jury trial, [Appellant]
was found guilty of Possession of Child Pornography and Criminal
Use of Communication Facility. The jury found that [Appellant]
possessed between 201 and 500 videos and/or images depicting
children ranging from prepubescent to 17 years old and that some
portrayed or contained indecent contact with and penetration or
attempted penetration of a child.
Following the jury’s verdict and the completion of a Pre-Sentence
Investigation, [the trial court] sentenced [Appellant] on December
18, 2023, to an aggregate, split sentence of one year less a day
to two years less a day of incarceration, followed by five years of
consecutive probation with the restrictive condition of house
arrest with electronic monitoring for the first year. [Appellant] did
not file a post-sentence motion or direct appeal but timely filed
this counseled PCRA Petition on November 14, 2024. After
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receiving the Commonwealth’s Answer, [the PCRA court] issued a
Notice of Intent to Dismiss without a hearing pursuant to
Pa.R.Crim.P. 907(1). [Appellant] did not respond to [the PCRA
court’s] 907 Notice. [Appellant] filed the instant appeal following
[the PCRA court’s] May 27, 2025, final Order dismissing
[Appellant’s] PCRA Petition. At [the PCRA court’s] direction,
[Appellant] subsequently filed a Statement of Errors on June 25,
2025, and the Commonwealth responded on June 26, 2025.
PCRA Court Opinion (PCO), 7/14/25, at 1-3 (footnotes and citations to trial
record omitted). Appellant raises three claims of error:
I. Should trial counsel have moved to suppress the evidence
given that under Pennsylvania law, Appellant had a
reasonable expectation of privacy in the information behind
his IP address such that the administrative subpoena statute
is unconstitutional with respect to internet account
information, and therefore, the police were required to
obtain a search warrant supported by probable cause for his
account information?
II. Whether trial counsel should have moved to suppress the
evidence because the search warrant for Appellant’s house
and electronics did not contain probable cause, was
overbroad, was lacking in particularity, and did not contain
any of the limiting language required by Commonwealth
v. Green[, 265 A.3d 541, 552 (Pa. 2021),] but instead
expressly authorized a search for legal material, including
adult pornography.
III. Was trial counsel ineffective for calling a character witness
but failing to request the jury instruction for evidence of
good character, thereby rendering that testimony useless as
the jury was not instructed on how important it was or how
to evaluate it.
Appellant’s Brief at 4-5.
Our standard of review of an order denying a PCRA petition is whether
the determination of the PCRA court is supported by the evidence of record
and is free of legal error. The PCRA court’s findings will not be disturbed
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unless there is no support for the findings in the certified record.
Commonwealth v. Lambert, 57 A.3d 645, 647 (Pa. Super. 2012).
We have held that “[i]n order for [a PCRA petitioner] to prevail on a
claim of ineffective assistance of counsel, he must show, by a preponderance
of the evidence, ineffective assistance of counsel which so undermined the
truth-determining process that no reliable adjudication of guilt or innocence
could have taken place.” Commonwealth v. Wiggins, 248 A.3d 1285, 1288
(Pa. Super. 2021) (quoting Commonwealth v. Presley, 193 A.3d 436, 442
(Pa. Super. 2018)). This requires “the petitioner to demonstrate that: (1) the
underlying claim is of arguable merit; (2) counsel had no reasonable strategic
basis for his or her action or inaction; and (3) the petitioner was prejudiced
by counsel’s act or omission.” Commonwealth v. Loner, 836 A.2d 125, 132
(Pa. Super. 2003) (en banc). We note that “prejudice is established where
the truth-determining process was so undermined that no reliable adjudication
of guilt or innocence could have taken place, i.e., there is a reasonable
probability that, but for counsel’s error, the outcome of the trial would have
been different.” Commonwealth v. Jones, 210 A.3d 1014, 1018–19 (Pa.
2019) (internal citation and quotation marks omitted). A PCRA petitioner must
satisfy all three elements of the test; failure to meet any single prong of the
test is fatal to an ineffectiveness claim. See Commonwealth v. Walker, 36
A.3d 1, 7 (Pa. 2011).
Appellant’s first claim alleges that trial counsel ineffectively failed to file
“a motion to suppress challenging the use of administrative subpoenas in this
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case.” Appellant’s Brief at 21. The Commonwealth issued a subpoena to
Comcast in February of 2021, as Comcast owned the IP address supplied by
the tipster. Comcast then disclosed the subscriber information associated with
the IP, which led authorities to Appellant’s home. Appellant argues that the
statute authorizing the subpoena2 is unconstitutional because he had a
reasonable expectation of privacy in the information disclosed by Comcast,
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2 The administrative subpoena statute states, in relevant part:
(a) Authorization.—
(1) In an ongoing investigation that monitors or utilizes
online services or other means of electronic communication
to identify individuals engaged in an offense involving the
sexual exploitation or abuse of children, the following shall
apply:
(i) The following may issue in writing and cause to be
served a subpoena requiring the production and
testimony under subparagraph (ii):
***
(D) An assistant district attorney designated in
writing by a district attorney.
***
(ii) A subpoena issued under subparagraph (i) may be
issued to a provider of electronic communication
service or remote computing service:
(A) requiring disclosure under section
5743(c)(2) (relating to requirements for
governmental access) of a subscriber or
customer’s name, address, telephone or
instrument number or other subscriber number
or identity, including any temporarily assigned
network address, which may be relevant to an
authorized law enforcement inquiry[.]
18 Pa.C.S. § 5743.1(a).
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and thus the records at issue must be obtained via a search warrant supported
by probable cause.3 See Commonwealth v. Robbins, 647 A.2d 555, 558
(Pa. Super. 1994) (“A search occurs when the government intrudes on an area
where a person has a constitutionally protected reasonable expectation of
privacy.”) (quotation marks and citation omitted).
Appellant’s core legal challenge pertains to the applicability of the “third
party” doctrine. “To have a reasonable expectation of privacy, one must
intend to exclude others and must exhibit that intent.” Commonwealth v.
Murphy, 795 A.2d 997, 1005 (Pa. Super. 2002). The United States Supreme
Court “consistently has held that a person has no legitimate expectation of
privacy in information he voluntarily turns over to third parties.” Smith v.
Maryland, 442 U.S. 735, 743–44 (1979). This “doctrine largely traces its
roots to [United States v.] Miller [425 U.S. 435 (1976)],” which involved a
government subpoena for bank records. Carpenter v. United States, 585
U.S. 296, 308 (2018). The Miller Court held that an individual lacks a
reasonable expectation of privacy in bank records showing canceled checks,
deposit slips, and monthly statements, as the information within those records
was disclosed by Miller to the bank, and thus he voluntarily shared the
information with third parties. Under Miller, Appellant would have no
reasonable expectation of privacy in the Comcast records.
____________________________________________
3 The first visit to Appellant’s home did not result in charges.
Appellant argues
that the search warrant obtained several months later was tainted by the
initial investigation.
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As Appellant emphasizes, in Commonwealth v. DeJohn, 403 A.2d
1283, 1289 (Pa. 1979), our Supreme Court declined to fully adopt Miller
“when construing the state constitutional protection against unreasonable
searches and seizures.” Appellant recognizes that, in Commonwealth v.
Kurtz, 294 A.3d 509 (Pa. Super. 2023) (Kurtz I), aff’d, 348 A.3d 133 (Pa.
2025) (OAJC) (Kurtz II), we addressed an Article I, Section 8 claim regarding
“a search warrant directed to Google, Inc. for records of searches made with
Google’s search engine for [a rape victim]’s name or home address during the
week preceding the July 2016 incident.” Id. at 517. Google “returned a report
that identified an [IP] address as having conducted two searches” of the
victim’s address hours before the attack. Id. Investigators then “determined
through requests submitted to the American Registry of Internet Numbers and
[Kurtz’s] telecommunications service provider that the IP address
corresponded to [Kurtz].” Id.
We held that the warrant which led to obtaining the IP was supported
by probable cause; however, in the alternative, we also concluded that Kurtz
lacked a reasonable expectation of privacy in his IP address. “By typing in his
search query into the search engine and pressing enter, [Kurtz] affirmatively
turned over the contents of his search to Google, a third party, and voluntarily
relinquished his privacy interest in the search.” Id. at 522. As to DeJohn,
we noted that the Court there “ruled that Article I, Section 8 of the
Pennsylvania Constitution provides broader protection to substantive bank
records than the Fourth Amendment[,] but that a bank customer has no
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legitimate expectation of privacy over basic account information, such as the
name and address associated with an account.” Id. at 520.
Appellant accepts that under Kurtz I, he lacked “a reasonable
expectation of privacy in the publicly viewable IP address that is shared with
other random third parties on the internet.” Appellant’s Brief at 27. To
distinguish the case, he focuses on the information “behind” the IP, i.e. the
subscriber and account information associated with the IP. Id. at 22
(asserting a “reasonable expectation of privacy in the account information
behind the IP address”). Appellant also claims that authorities obtained much
more than basic account information as they “also demanded information on
when and for how long Appellant accessed the internet. This information is
as sensitive as cellular location data because it establishes when Appellant
was at home and what he was doing.” Id. at 24. Therefore, Appellant
concludes that the information the Commonwealth obtained via the subpoena
is analogous to the cell phone records obtained via subpoena in Carpenter.
See Carpenter, 585 U.S. at 309 (“Given the unique nature of cell phone
location records, the fact that the information is held by a third party does not
by itself overcome the user’s claim to Fourth Amendment protection.”).4
____________________________________________
4 Notwithstanding the holding in Kurtz that there is “no legitimate expectation
of privacy over basic account information,” Kurtz, 294 A.3d at 520, Appellant
argues the case is “distinguishable ... because there, the defendant moved for
suppression of his actual IP address itself.” Appellant’s Brief at 26. In addition
to this distinction, Appellant cites our Supreme Court’s Opinion Announcing
the Judgment of the Court in Kurtz II, opining that “even the OAJC in Kurtz
(Footnote Continued Next Page)
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We conclude that Appellant has failed to establish arguable merit to his
ineffectiveness claim. “A claim has arguable merit where the factual
____________________________________________
[II] suggests that the information behind IP addresses may be protected.”
Appellant’s Reply Brief at 5. He argues that the administrative subpoena
statute allows authorities to obtain “subscriber’s name, address, billing
information, session times, and usage history,” and thus goes beyond basic
information. Id. at 4.
First, it is not clear that anything beyond basic account information was
obtained in this case via the subpoena. The statute authorizes disclosure of
“subscriber or customer’s name, address, telephone or instrument number or
other subscriber number or identity, including any temporarily assigned
network address, which may be relevant to an authorized law enforcement
inquiry.” See 18 Pa.C.S. § 5743.1(a)(1)(ii). It is not clear whether the
Commonwealth obtained “information on when and for how long Appellant
accessed the internet” via the subpoena. Appellant’s Brief at 24. As the
Commonwealth notes:
[Appellant] has failed to ensure the administrative subpoena at
issue in the certified record. Instead, [Appellant] references a
copy of the Manor Township Police Report detailing what was
provided by Comcast Communications in response to that
subpoena which was appended as an exhibit to his PCRA Petition.
Commonwealth’s Brief at 11. “Our law is unequivocal that the responsibility
rests upon the appellant to ensure that the record certified on appeal is
complete in the sense that it contains all of the materials necessary for the
reviewing court to perform its duty.” Commonwealth v. Harlan, 208 A.3d
497, 501 (Pa. Super. 2019) (quoting Commonwealth v. Preston, 904 A.2d
1, 6-7 (Pa. Super. 2006) (en banc)).
In any event, were we to reach the merits of his arguments, “counsel cannot
be held ineffective for failing to anticipate a change in the law.”
Commonwealth v. Drummond, 285 A.3d 625, 645 (Pa. 2022) (quotation
marks and citation omitted). We must assess counsel’s performance based
on the law in effect at the time of trial, and the language in Kurtz I indicates
that basic account information is not protected. Therefore, to the extent
Appellant relies on our Supreme Court’s decision in Kurtz II as undermining
Kurtz I, Appellant’s counsel cannot be required to anticipate the Supreme
Court’s ruling.
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averments, if accurate, could establish cause for relief.” Commonwealth v.
Evans, 303 A.3d 175, 182 (Pa. Super. 2023) (quoting Commonwealth v.
Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (en banc)). Appellant
repeatedly refers to the Commonwealth obtaining his account information.
See, e.g., Appellant’s Brief at 22 (arguing that “The Court should find that the
police were required to obtain a search warrant to access Appellant’s account
information”), 24 (maintaining that Appellant “had a reasonable expectation
of privacy in his account information even though it was stored with his
internet service provider”). This assertion is belied by the record. As the
PCRA court stated in its factual findings, “Comcast disclosed that Maria Sena
was the subscriber, with a billing address of 110 Millstone Drive, Mountville,
Pennsylvania. Subsequent investigation revealed that Ms. Sena’s son,
[Appellant] Yeuris Almonte-Sena, resided at that address.” PCO at 2. Hence,
the account belonged to Appellant’s mother, not Appellant. This is not a mere
technicality. As we have explained:
A defendant moving to suppress evidence has the preliminary
burden of establishing standing and a legitimate expectation of
privacy. Standing requires a defendant to demonstrate one of the
following: (1) his presence on the premises at the time of the
search and seizure; (2) a possessory interest in the evidence
improperly seized; (3) that the offense charged includes as an
essential element the element of possession; or (4) a proprietary
or possessory interest in the searched premises. A defendant
must separately establish a legitimate expectation of privacy in
the area searched or thing seized. Whether defendant has a
legitimate expectation of privacy is a component of the merits
analysis of the suppression motion. The determination of whether
defendant has met this burden is made upon evaluation of the
evidence presented by the Commonwealth and the defendant.
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Commonwealth v. Burton, 973 A.2d 428, 435 (Pa. Super. 2009) (citations
omitted).
In this case, Appellant must establish a legitimate expectation of privacy
in the account records for Comcast services, which were paid for by his
mother. In Commonwealth v. Benson, 10 A.3d 1268, 1271 (Pa. Super.
2010), Benson “contend[ed] the trial court erred in denying his request to
suppress certain telephone bills containing detailed call records obtained
pursuant to a warrant issued upon T–Mobile telephone company in April
2008.” We concluded that Benson had no valid Article I, Section 8 claim
because a third party, his girlfriend, paid for the phone and merely authorized
Benson to use it.
It is clear after [Commonwealth v.] Beauford [475 A.2d 783,
791 (Pa. Super. 1984)], that, under the Pennsylvania
Constitution, an individual has a reasonable expectation of privacy
in his own cellular telephone records. However, there is no
support in Beauford for the proposition that an individual has a
reasonable expectation of privacy in the cellular telephone records
of a third party. In Beauford, this Court stated that the fact that
the telephone company has access to numbers dialed from a
particular telephone was irrelevant to the existence of a legitimate
expectation of privacy regarding such information because an
individual has no choice in the matter. By accepting the fact that
the telephone company collected the information for billing
purposes the caller was not acquiescing to the turning over of this
information to a third party. Beauford, 475 A.2d at 789–90.
....
While the Pennsylvania Constitution affords greater protection
against unreasonable search and seizure than the Federal
Constitution . . . it does not afford an individual a legitimate
expectation of privacy in the telephone bills of a third party,
particularly where, as here, the third party agreed to turn over
duplicates of the bills to the police. . . . Thus, while [Benson]
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had use of the telephone, the bills in question were not his
telephone bills. The telephone in question was Tawanda
Armour’s and she is the one who received and had the obligation
to pay the telephone bills containing the records of telephone
numbers dialed. [Benson] had no legal right to request or control
access to the information from the telephone company because
he was not the owner of the telephone. He had no legitimate
expectation of privacy in them.
Id. at 1273–74 (Pa. Super. 2010) (emphasis added).
Similarly, that Appellant’s mother allowed him to use the internet
service she paid for does not create a legal right to control access to his
mother’s records. While Appellant declares in conclusory fashion that the
records are “his,” the record establishes that Appellant merely used the
service paid for by his mother, and, as in Benson, “had no legitimate
expectation of privacy in them.” Id. at 1274. “Where defense counsel’s
failure to litigate a Fourth Amendment claim competently is the principal
allegation of ineffectiveness, the defendant must also prove that his Fourth
Amendment claim is meritorious[.]” Kimmelman v. Morrison, 477 U.S. 365,
375 (1986). Appellant’s failure to establish a legitimate expectation of privacy
precludes a finding of arguable merit as to the merits of his suppression claim.
We therefore affirm the PCRA court’s ruling on that alternative basis.
Commonwealth v. Williams, 977 A.2d 1174, 1177 (Pa. Super. 2009) (“It is
well-settled ... that we may affirm the PCRA court’s decision on any basis.”)
(citation omitted).
Appellant’s second claim is that trial counsel “should have challenged
the search warrant that authorized seizing Appellant’s electronic devices and
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searching his cell phone because the search warrant was overbroad, lacking
in particularity, and devoid of probable cause.” Appellant’s Brief at 38-39.
Appellant argues that the warrant “specifically asks for permission to search
for ‘all information,’ not just information related to the crime under
investigation.” Id. at 39. He maintains the warrant “is overbroad” and should
have been challenged on that basis. Id. at 42.
The warrant authorized the seizure and search of “computer
equipment,” with that term defined to include a large variety of devices. In
turn, the warrant permitted a search of “[a]ny and all information and/or data”
stored on “a computer or related components.” Application for Search
Warrant, 11/8/21, at 2. Additionally, the executing officers were authorized
to seize, among other items:
b. Any and all documentation and records, whether on paper or
stored on magnetic media (including information stored within a
computer), disclosing, describing, referring, reflecting, or
adverting to pornographic images (child or adult), associated
BIOS, driver software programs, and all peripheral equipment
(LCD/CRT controller, modems, printers, scanners, video
cameras/camcorders/VCRs, and other image
capturing/reproducing devices).
Id. at 3.
Appellant asserts that the authorization to search for “pornographic
images (child or adult)” is overbroad, as pornography depicting adults is
generally legal. “There is no explanation for why the police would need to
search for adult pornography or why they would need to search all data and
not just for child pornography.” Appellant’s Brief at 41. Relatedly, Appellant
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maintains the authority to “search all data, including paper records,” is
overbroad because it permitted a search of physical records, whereas this case
involved the dissemination of child pornography on the internet. In sum,
Appellant concludes there is “not … a single limitation on the search. Instead,
it just allows the officers to search for everything.” Id. at 42. Appellant thus
concludes that trial counsel was ineffective for failing to challenge the warrant
as overbroad.
Appellant’s overarching claim addresses the particularity requirement.
“This Court has recognized that the particularity component subsumes two
distinct, although often related, concepts.” Commonwealth v. Ani, 293 A.3d
704, 716 (Pa. Super. 2023). We summarized the two concepts as follows:
A warrant that is not “particular enough” permits “a search in
terms so ambiguous as to allow the executing officers to pick and
choose,” which amounts to the rummaging that so offended the
drafters of the federal and state constitutions. Commonwealth
v. Santner, 308 Pa.Super. 67, 454 A.2d 24, 25 n.2 (1982). This
first component thus ensures that the authorities are sufficiently
limited in what they can seize. The second concept is
overbreadth. A warrant can be clear in terms of what will be
seized, thus ensuring that the authorities’ discretion does not
permit a general rummaging. But if the warrant allows authorities
to seize items for which probable cause does not exist, it may be
overbroad. Id.
....
Our Supreme Court has identified these defects as “symptoms of
the same disease.”
Moreover, for particularity purposes, we have clarified that
although some courts have treated overbreadth and
ambiguity as relating to distinct defects in a warrant, see
Commonwealth v. Santner, 308 Pa.Super. 67, 454 A.2d
24, 25 n.2 (1982), “both doctrines diagnose symptoms of
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the same disease: a warrant whose description does not
describe as nearly as may be those items for which there is
probable cause.” Grossman, 555 A.2d at 899-900.
Johnson, 240 A.3d at 584.
Id. at 716-17.
Our starting point is determining for which items the Commonwealth
established probable cause. “[I]n any assessment of the validity of the
description contained in a warrant, a court must initially determine for what
items probable cause existed. The sufficiency of the description must then be
measured against those items for which there was probable cause.”
Commonwealth v. Grossman, 555 A.2d 896, 900 (Pa. 1989). Appellant
implicitly concedes that the Commonwealth established probable cause to
search for child pornography in general.5 Appellant’s specific complaints must
be examined in that context. We agree there was no probable cause to search
for “adult pornography.” However, we disagree that the warrant authorized
seizing and/or searching for adult pornography. For reference, we quote the
pertinent scope of material the executing officers were permitted to seize and
search:
b. Any and all documentation and records, whether on paper or
stored on magnetic media (including information stored within a
____________________________________________
5 Appellant’s argument on this point is not consistent. He claims that the
warrant was “devoid of probable cause.” Appellant’s Brief at 39. This suggests
that the Commonwealth failed to establish probable cause to search for
anything. Yet, Appellant later argues: “There is no explanation for why the
police would need to search for adult pornography or why they would need to
search all data and not just for child pornography.” Id. at 41 (emphasis
added). This argument recognizes that the Commonwealth established
probable cause to search for child pornography.
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computer), disclosing, describing, referring, reflecting, or
adverting to pornographic images (child or adult),
associated BIOS, driver software programs, and all peripheral
equipment (LCD/CRT controller, modems, printers, scanners,
video cameras/camcorders/VCRs, and other image
capturing/reproducing devices).
Application for Search Warrant, 11/8/21, at 3 (emphasis added).
The bolded text indicates that the executing officers were permitted to
seize and search evidence of child pornography concealed as or combined with
legal adult pornography. Regarding the reference to physical records, the
training and experience portion of the attached affidavit of probable cause
states: “Collectors of child pornography sometimes possess and maintain
their ‘hard copies’ of child pornographic material; that is, their pictures, films
….” Id. at 12.
Finally, and contrary to Appellant’s final claim, we conclude that the
warrant contains limiting language. We agree with the PCRA court’s rationale
on this point, as set forth in the notice of intent to dismiss.
The Pennsylvania Supreme Court has held that in cases involving
child pornography, a warrant that authorizes law enforcement
personnel to seize and search a wide array of electronic devices
and associated hardware, etc., is not overbroad where “self-
limiting language” narrows a search only for evidence relating to
the possession and/or distribution of child pornography.
Commonwealth v. Green, 265 A.3d 541, 552 (Pa. 2021).
....
In [Appellant’s] case, the warrant itself contained “self-limiting
language” in paragraphs 5(c), 5(d), and 6.[6] The affidavit of
____________________________________________
6 The limiting language provided as follows:
(Footnote Continued Next Page)
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probable cause was explicitly incorporated into the search warrant
application. The extensive narrative therein explained that an
internet-capable device associated with [Appellant’s] IP
address/residence was believed to have viewed and/or uploaded
videos and images of suspected child pornography. The affidavit
also outlined that searching and seizing information from
computers and devices capable of internet access, such as
smartphones, requires investigators to seize all electronic storage
devices—along with related peripherals—to be searched later by a
qualified computer expert. The affidavit explained … “[t]his
affidavit is made in support of an application for a search warrant
to search for and seize instrumentalities, fruits, and evidence of
violations of Title 18, Section 6312,” which deals only with child
pornography. (Appl. for Search Warrant, Aff. Of Probable Cause,
Nov. 8, 2021, ¶15.) Read as a whole, the search warrant and
affidavit provided probable cause to search for and seize the items
enumerated in the warrant and clearly limited the scope of the
search to evidence of the crime of possession and/or
dissemination of child pornography. Here again, [Appellant’s]
claim of ineffective assistance must fail because trial counsel
cannot be found ineffective for failing to advance a meritless
claim.
____________________________________________
[5]c. Any and all information and/or data stored in
magnetic or electronic form on computer media or on media
capable of being read by computer or the aid of computer
related equipment, as well as the forensic examination and
data recovery from all computer related items seized
involving the possession and dissemination of [c]hild
[p]ornography.
d. All data contained within the seized media as set forth
above that may contain evidence pertaining to the
possession and dissemination of [c]hild [p]ornography.
6. Any and all child pornographic files (pictures or movies) and
any other digital evidence relating to the possession and/or
dissemination of child pornography, contained on the electronic
storage media seized as a result of this search warrant, including
file sharing software and/or configuration files.
Application for Search Warrant, 11/8/21, at 3.
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Pa.R.Crim.P. 907 Notice, 3/6/25, at 2-3, n.1 (citation omitted). We conclude
that the warrant “prevented an indiscriminate or discretionary search of the
home because any actions taken by the searching officers were restricted to
only what could yield evidence of child pornography.” Green, 265 A.3d at
552. Accordingly, we agree that the PCRA court properly dismissed this claim
as “[c]ounsel will not be found ineffective for failing to raise a meritless claim.”
Commonwealth v. Brown, 196 A.3d 130, 151 (Pa. 2018) (citation
omitted).7
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7 While we dispose of the claim on arguable merit grounds, we add that
Appellant argues “[s]uppression is required for all evidence seized upon the
execution of an overbroad warrant, including the items for which probable
cause existed.” Appellant’s Brief at 45 (citing Grossman, 555 A.2d at 900).
He therefore presumes that a motion to suppress would have excluded all
evidence.
However, we apply the severability doctrine, which “mandates that invalid
portions of a search warrant may be stricken and the remaining portions held
valid, as long as the remaining portions of the warrant describe with
particularity the evidence to be seized.” Commonwealth v. Bagley, 596
A.2d 811, 824 (Pa. Super. 1991). The Grossman Court concluded that all
evidence must be suppressed because “the warrant authorizing the seizure of
‘all files’ was unconstitutionally overbroad in its failure to describe as
specifically as was reasonably possible the three files described in the affidavit
for which there was probable cause.” Grossman, 555 A.2d at 900. The
Grossman Court did not discuss severability, and “a restriction of the doctrine
is that it does not apply to general warrants.” Ani, 293 A.3d at 730. The
warrant in Grossman allowed a search of all files relating to over 2,000
clients. Thus, the warrant in that case appeared to be “general” in character.
In contrast to Grossman, had Appellant successfully established that the
warrant failed to address probable cause for certain items, e.g. “adult
pornography,” he errs in assuming that all evidence would be suppressed.
Thus, Appellant’s argument does not meaningfully account for the prejudice
(Footnote Continued Next Page)
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J-S10044-26
Appellant’s third and final claim is that trial counsel’s failure to request
a jury instruction for evidence of good character constituted ineffective
assistance of counsel. As the PCRA court explained:
At trial, the Commonwealth presented evidence of numerous
cybertips demonstrating that an internet user at [Appellant’s]
residence had used a device to upload and receive child
pornography utilizing screennames and emails associated with
[Appellant], as well as applications and web-based services found
to have been accessed by [Appellant’s] phone. All of these
accounts were password protected. This evidence of guilt was so
overwhelming that a jury instruction on character evidence could
not have contributed to the verdict. Moreover, the jury did hear
the very limited character evidence that was offered and was
instructed on how to determine a witness’s credibility. For these
reasons, [Appellant has] failed to adequately plead and prove that
[Appellant was] prejudiced by counsel’s failure to request a jury
instruction on character evidence and, accordingly, [Appellant’s]
claim does not warrant post-conviction relief.
Pa.R.Crim.P. 907 Notice, 3/6/25, at 3-4, n.1.
We agree with the PCRA court’s analysis. Given the overwhelming
evidence of Appellant’s guilt, Appellant was not prejudiced by trial counsel’s
failure to request a jury instruction on character evidence. On this record, we
do not discern no substantial likelihood of a different trial result had the jury
instruction been requested and delivered, and therefore, we conclude that
Appellant has failed to establish the prejudice prong of the test for ineffective
assistance of counsel. See Jones, 210 A.3d at 1019.
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prong. See Commonwealth v. Melson, 556 A.2d 836, 839 (Pa. Super.
1989) (“Where the challenge is to a failure to move for suppression of
evidence, the defendant must establish that ... if the evidence had been
suppressed, there is a reasonable probability the verdict would have been
more favorable.”).
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J-S10044-26
After review, we conclude the PCRA court’s denial of Appellant’s PCRA
petition is supported by the evidence of record and free of legal error. See
Lambert, 57 A.3d at 647.
Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 06/11/2026
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