The opinion
J-A09040-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
ADAM ZYDNEY :
:
Appellee : No. 927 MDA 2016
Appeal from the Order Entered May 4, 2016
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0001371-2015,
CP-14-CR-0001810-2015
BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 27, 2017
Appellant, the Commonwealth of Pennsylvania, appeals from the order
entered in the Centre County Court of Common Pleas, which suppressed the
statements which Appellee, Adam Zydney, made to police during a non-
custodial interview.1 We affirm.
The relevant facts and procedural history of this case are as follows.
On July 31, 2015, police executed a search warrant at Appellee’s residence
____________________________________________
1
The record indicates the court issued notice of its May 4, 2016 order to the
parties on May 5, 2016. The Commonwealth had until June 5, 2016, to file a
notice of appeal. June 5, 2016, however, fell on a Sunday. Accordingly, the
Commonwealth timely filed its notice of appeal on Monday, June 6, 2016.
See Pa.R.A.P. 108(a)(1) (explaining that in computing any period of time
under these rules involving date of entry of order, day of entry shall be day
clerk of court mails or delivers copies of order to parties).
J-A09040-17
for indicia of possession and distribution of child pornography. During the
search, police confiscated, inter alia, Appellee’s laptop. On August 4, 2015,
Appellee and his attorney voluntarily met with Detective Martin, who
interviewed Appellee. Detective Martin informed Appellee the interview was
non-custodial and Appellee was free to leave at any time. Detective Martin
explained that he assumed Appellee understood his rights because counsel
was present; Appellee indicated he did. Detective Martin advised Appellee
that if Appellee cooperated and explained what authorities would discover on
Appellee’s laptop, Detective Martin would charge Appellee with only one
count of possession of child pornography. Detective Martin also said he
could not “ultimately determine what would happen with the final disposition
of the case.” (N.T. Suppression Hearing, 1/22/16, at 30). Subsequently,
Appellee told Detective Martin there was child pornography on his laptop.
The Commonwealth charged Appellee on August 31, 2015, with one
count of possession of child pornography at No. 1371-2015. The
Commonwealth charged Appellee, on November 11, 2015, with an additional
1,061 counts of possession of child pornography at No. 1810-2015. The
court consolidated the cases on December 16, 2015. On December 23,
2015, Appellee filed a motion to suppress his interview statements to
Detective Martin and to dismiss the additional 1,061 possession charges.
The court held a suppression hearing on January 22, 2016, where Detective
Martin testified. On May 4, 2016, the court granted in part and denied in
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J-A09040-17
part Appellee’s suppression motion. The court suppressed Appellee’s August
4th interview statements as involuntary but did not dismiss the additional
1,061 charges. The Commonwealth filed a timely notice of appeal on
Monday, June 6, 2016, and certified in its notice of appeal that the court’s
suppression order substantially handicapped or terminated prosecution. On
that same day, the court ordered the Commonwealth to file a concise
statement of errors complained of on appeal per Pa.R.A.P. 1925(b); the
Commonwealth timely complied on June 27, 2016.
The Commonwealth raises one issue for our review:
WHETHER THE TRIAL COURT ERRED IN GRANTING
[APPELLEE’S] MOTION TO SUPPRESS STATEMENTS
FINDING THAT THE STATEMENTS WERE NOT MADE
VOLUNTARILY WHEN THEY WERE MADE BY [APPELLEE],
DURING A VOLUNTARY VISIT TO THE POLICE STATION,
WHEN HE WAS ACCOMPANIED BY HIS ATTORNEY
THROUGHOUT HIS INTERVIEW, AND NO PROMISE OF
ACTUAL IMMUNITY WAS MADE TO [APPELLEE?]
(Commonwealth’s Brief at 4).
When the Commonwealth appeals from a suppression order, the
relevant scope and standard of review are:
[We] consider only the evidence from the defendant’s
witnesses together with the evidence of the prosecution
that, when read in the context of the entire record,
remains uncontradicted. As long as there is some
evidence to support them, we are bound by the
suppression court’s findings of fact. Most importantly, we
are not at liberty to reject a finding of fact which is based
on credibility.
The suppression court’s conclusions of law, however, are
not binding on an appellate court, whose duty is to
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J-A09040-17
determine if the suppression court properly applied the law
to the facts.
Commonwealth v. Goldsborough, 31 A.3d 299, 305 (Pa.Super. 2011),
appeal denied, 616 Pa. 651, 49 A.3d 442 (2012) (citations and quotations
omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Thomas King
Kistler, we conclude the Commonwealth’s issue merits no relief. The trial
court’s opinion comprehensively discusses and properly disposes of the
question presented. (See Trial Court Opinion, filed May 4, 2016, at 9-10)
(finding: Appellee made inculpatory statements in interview with Detective
Martin; Appellee was free to leave interview and had counsel present
throughout interview; during suppression hearing, Detective Martin testified
that he told Appellee during interview that if Appellee “was cooperative…and
[if] he’s honest with me and I find what he’s telling me I’m going to find,
then I would charge him with one count, but I couldn’t ultimately determine
what would happen with the final disposition of the case”; notwithstanding
Detective’s statement that Appellee was free to leave interview at any time,
Detective was person in apparent authority to make and perform on his
promise to file only one charge; Detective Martin was unable to bind District
Attorney’s office with promises as to charging decisions; likewise,
Commonwealth cannot then use evidence obtained as direct result of those
promises against Appellee; under totality of circumstances, Appellee’s
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J-A09040-17
interview statements to Detective Martin were involuntary and must be
suppressed to put Appellee back in position as if he had not spoken with
Detective Martin). The record supports the trial court’s reasoning.
Accordingly, we affirm on the basis of the trial court opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2017
-5-
Circulated 04/07/2017 01:56 PM
IN THE COURT OF COJ.\D10N PLEAS OF CENTRE COUNTY, PENNSYLVANIA
CRIMINAL ACTION - LAW
COMMONWEAL TH OF PENNSYLVANIA
v. No. CP-14-CR-1371-2015
N~@~,,,_
ADAMZYDNEY
Attorney for the Commonwealth: Megan McGoron, Esq.
Attorney for the Defendant: Roy Lisko, Esq.
OPINION AND ORDER
Kistler, J.
Presently before the Court are Defendant's Omnibus Pre-Trial Motions filed on
November 6, 2015 and December 23, 2015. 1 A hearing on the Motion was held on January 22,
2016. Defendant submitted a Brief in Support of his Motion on March 6, 2016, and the
Commonwealth submitted a Brief in Opposition on March 24, 2016. For the following r~ons2~
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Defendant's Motion is DENIED. ~Z~~
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FINDINGS OF FACT c)Oo &"" ;,J
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1. On July 22, 2015, Officer Michael Mendez, of the West York Borough:Folk:e- ~ o
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Department, specifically the Internet Crimes Against Children Unit, w~onduc~an C:,
undercover investigation into the internet sharing of child pornography. Officer Mendez
was searching for hash values known to him to contain child pornography. Officer
Mendez located a computer with the IP address of 207.174.204.29, which he determined
was sharing files containing child pornography using a Bit Torrent filed-sharing network.
2. Officer Mendez was able to download two videos from the above IP address, the first
depicting a white prepubescent female with blonde hair and blue eyes, posing and
1
The November 6, 2015 Motion was filed at docket number CP-14-CR-1371-2015, and the December 23, 2015
Motion was filed at docket number CP-14-CR-1810-2015. Both Motions raise the same issues. ·
IRIO ORD DS
exposing her breasts and vaginal area. 2
3. Based on the video, Officer Mendez prepared an affidavit in support of a search warrant
for the IP address. In doing so, Officer Mendez used a public service called "Aries" to
determine the subscriber or company that has the wireless or internet server for that
particular IP address. His search revealed the IP address belonged to getwireless.net.
4. The search warrant was approved by the Honorable Keith Albright of York County on
July 23, 2015. Officer Mendez had the search warrant served on getwireless.net. The
subscriber information came back to Alexa Kottmeyer at the address of 801 A-11 West
Aaron Drive in State College, Centre County, Pennsylvania. Officer Mendez was pointed
to the Ferguson Township Police Department by the dispatch center, as the subscriber's
address fell within that jurisdiction.
5. The investigation was then assigned to Detective Martin of the Ferguson Township
Police Department. Detective Martin first contacted Officer Mendez and received
information about the case including the local home address of the IP address and the
subscriber information. Detective Martin confirmed the name Alexa Kottmeyer was
associated with that specific address.
6. Detective Martin then prepared a search warrant for the residence based on the
information provided to him by Officer Mendez. The search warrant was approved by
District Judge Dutchcot and was executed on the residence on July 31, 2015. Detective
Martin was looking for any electronics that had the capability of connecting to the
internet or any electronic devices that are capable of storing images or videos.
7. Defendant was present at the residence when the search was conducted. Electronic items
2
Counsel for Defendant and the Commonwealth stipulated at the hearing to the contents of the video as Officer
Mendez described to contain known child pornography.
2
were found, specifically a laptop computer later determined to belong to Defendant. This
computer was forensically analyzed and child pornography, including the original videos
viewed by Officer Mendez, were found on the laptop.
8. While the search warrant was being executed, Detective Martin asked Defendant if he
would like to speak with him. Defendant indicated he would like to speak to an attorney
first. Detective Martin was contacted two days later by Attorney Lance Marshall to set up
a meeting. Attorney Marshall and Defendant voluntarily met with Detective Martin at the
Ferguson Township Police Department on August 4, 2015.
9. Before the interview began, Detective Martin told Defendant that he was free to leave
because this was not a custodial interrogation. Detective Martin also reminded Defendant
that he did not have to speak to him. Detective Martin confirmed Defendant understood
his rights.
10. When questioned about what was contained on the laptop, Defendant admitted that child
pornography would be discovered. During the forensic analysis, hundreds of images of
child pornography were discovered.
11. During the interview, Detective Martin told Defendant that ifhe cooperated and told him
what he was going to find, and that was in fact what he did find, that he would charge
him with only one count. However, Detective Martin did tell Defendant he could not
ultimately determine what would happen with the final disposition of the case.
12. Originally, Detective Martin did file only one charge of possession of child pornography.
However, at a later date he was instructed by the District Attorney's Office to file
additional charges.
DISCUSSION
"The Commonwealth shall have the burden of going forward with the evidence and of
3
establishing that the challenged evidence was not obtained in violation of the defendant's rights.
The defendant may testify at such hearing, and if the defendant does testify, the defendant does
not thereby waive the right to remain silent during trial." Pa.R.Crim.P. 58l(h). In all cases, the
burden of production is now upon the Commonwealth. See Commonwealth ex rel. Butler v.
Rundle, 239 A.2d 426 (1968). The burden of persuasion is there as well. See Miranda v. Arizona,
384 U.S. 436, 479 (1966). See also, Commonwealth ex rel. Butler v. Rundle, supra., which
establishes a preponderance of the evidence as the standard of proof.
I. Motion to Quash/Suppress - Alleged Insufficiencies of Search Warrant
Defendant alleges that Officer Mendez did not have the requisite probable cause within
the four corners of the search warrant to effectuate a search. Inparticular, Defendant argues the
search warrant application was insufficient because (1) the application does not provide a clear
link between the IP address isolated by Officer Mendez and Defendant's apartment; and (2) even
if the Court were to find that the application supplied the issuing authority with every necessary
link from the IP address to the apartment address, the information relied upon to draw these links
was stale at the time of application.
The Fourth Amendment of the United States Constitution and Article 1, Section 8 of the
Pennsylvania Constitution protect citizens of the Commonwealth from unreasonable searches
and seizures pursuant to general warrants. Commonwealth v. Walston, 724 A.2d 289, 291 (Pa.
1998). In Commonwealth v. Edmunds, the Pennsylvania Supreme Court explained the twin aims
of Article 1, Section 8 as "the safeguarding of privacy and the fundamental requirement that
warrants shall only be issued upon probable cause." Commonwealth v. Edmunds, 586, A2d 887,
897 (Pa. 1991). "Before an issuing authority may issue a constitutionally valid search warrant, he
or she must be furnished with information sufficient to persuade a reasonable person that
probable cause exists to conduct a search." Commonwealth v. Baker, 615 A.2d 23, 24 (Pa. 1992).
4
Upon review, the duty of the court is to ensure the magistrate had a "substantial basis for ...
concluding probable cause existed." Id
"The standard for evaluating whether probable cause exists for the issuance of a search
warrant is the "totality of circumstances" test as set forth in Illinois v. Gates, 462 U.S. 213, 103
S.Ct. 2317, 76 L.Ed.2d 527 (1983), and adopted by [the Pennsylvania Supreme] Court in
Commonwealth v. Gray, 509 Pa. 476, 484, 503 A.2d 921, 925 (1985)." Commonwealth v. Jones,
668 A.2d 114, 116 (Pa. 1995). "A magistrate is to make a "practical, common-sense decision
whether, given all the circumstances set forth in the affidavit before him, including the 'veracity'
and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability
that contraband or evidence of a crime will be found in a particular place." Id. at 116-1 7
(citations omitted).
Officer Mendez's affidavit of probable cause contained his training and experience in
child exploitation and child pornography investigations, as well as all of the information about
the specific incident that led him to believe that evidence of child pornography would be located
at the address he sought to obtain from getwireless.net. Specifically, Officer Mendez detailed his
discovery of a computer sharing known child pornography, his successful download of a video
file, a description of that video, and his use of Aires to discover the IP address in question
belonged to getwireless.net. Based on this information, Officer Mendez sought a search warrant
for getwireless.net to obtain the subscriber information connected to that IP address. Based on
these facts, the Court finds that the factual averments set forth in Officer Mendez's affidavit of
probable cause clearly provide a sufficient basis for issuing the search warrant.
After obtaining the subscriber information from getwireless.net, Officer Mendez
transferred the case to Detective Martin and the Ferguson Township Police Department.
Detective Martin then obtained a search warrant using the same information Officer Mendez had
5
used to obtain the first search warrant. Detective Martin accidentally made a typographical error
by listing Armstrong Cable Services as the service provider in his affidavit. However, just one
line below, he correctly lists that a search warrant was served on getwireless.net and the
subscriber information obtained was for Alexa Kottmeyer at 801 W. Aaron Drive, Apartment
Al 1. Moreover, the Detective lists getwireless.net in a following paragraph detailing his
discussion with Park Forest Apartments Management that they do provide internet through that
company. The question now becomes whether this misstatement was material to the
determination of probable cause by the issuing magistrate.
"[S]earches conducted pursuant to warrants are to be favored over warrantless searches
and thus ... must be tested with a commonsense, nontechnical, ungrudging, and positive
attitude." Commonwealth v. Conner, 305 A.2d 341, 345 (Pa. 1973). "The test of materiality is
not whether the misstatement strengthens the application, but rather whether the misstatement is
essential thereto. This test is performed by deleting the misstatement and then determining
whether sufficient probable cause remains in the application to issue a valid warrant."
Commonwealth v. Jones, 323 A.2d 879, 881 (Pa. Super. Ct. 1974) (internal citations omitted).
Thus, this Court must review the sufficiency of Detective Martin's affidavit of probable cause as
if the mention of Armstrong Cable was not present. Without this statement, the affidavit still
clearly states from what source the subscriber information was obtained, and that this
information was obtained with a search warrant. Detective Martin's affidavit makes clear that
getwireless.net was the provider from which the address to be searched was obtained.
Furthermore, there is an overwhelming amount of information contained within the four comers
of the affidavit for the issuing magistrate to be satisfied that evidence of child pornography
would be located at that residence. Accordingly, the Court finds that the misstatement was not
material, and there was still enough information in the affidavit for the magistrate to find
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probable cause to issue the warrant.
Defendant's last argument with respect to the search warrants is that the information
upon which the officers relied in obtaining the search warrants was stale. Defendant argues that
because the Commonwealth failed to present any evidence to rebut this claim prior to or during
the hearing on the instant motion, it has failed to meet its burden to prove admissibility of the
evidence. In his Motion, Defendant argues the association of Alexa Kottmeyer with 801 W.
Aaron Drive was last made in October of 2014, and thus stale information insufficient to support
a finding of probable cause. Defendant fails, however, to cite any law or conduct any analysis as
to why this is of significant importance. The current subscriber information obtained from
getwireless.net was that of Ms. Kottmeyer, and Detective Martin's checked the local database
just to see if that name was associated anywhere within his jurisdiction. This determination had
no bearing on the fact that child pornography was shared from an IP address associated with that
location. Moreover, the Commonwealth presented ample evidence that the information used to
obtain both search warrants was not stale because all events of the. investigation transpired over
one week's time. As such, the Court finds no basis to conclude the information was stale, and
Defendant's argument is without merit. Based on the foregoing, Defendant's Motion to Quash
Search Warrant and Suppress Evidence is DENIED.
II. Motion to Suppress - Statements to Police
Defendant argues his confession to Detective Martin was not voluntary because it was
given in reliance upon Detective Martin's promise to file only one charge in this matter. In
· determining the voluntariness of a confession, the Court must look to the totality of the
circumstances surrounding that confession. Commonwealth v. Nester, 709 A.2d 879, 882 (Pa.
1998). "The question of voluntariness is not whether the defendant would have confessed
without interrogation, but whether the interrogation was so manipulative or coercive that it
7
deprived the defendant of his ability to make a free and unconstrained decision to confess." Id In
making this determination, a court should look at the duration and means of the interrogation, the
physical and psychological state of the accused, the conditions attendant to the detention, the
attitude of the interrogator, and any other factors that bear on a person's ability to withstand
suggestion and coercion. Id It remains the Commonwealth's burden to prove voluntariness by a
preponderance of the evidence. Id
"It is well established that district attorneys, in their investigative and prosecutorial
roles, have broad discretion over whether charges should be brought in any given case."
Commonwealth v. Stipetich, 652 A.2d 1294, 1295 (Pa. 1995). "While the police exercise, as a
practical matter, a certain discretion in deciding whether to make an arrest, issue a citation, or
seek a warrant, the ultimate discretion to file criminal charges lies in the district attorney. Police
officers have no authority to enter agreements limiting the power of the district attorney in this
regard." Id. However, "a confession induced by a promise of immunity from a person in apparent
authority to perform the promise is involuntary." Commonwealth v. Els/ager, 502 A.2d 1354,
1359 (Pa. Super. Ct. 1986) (quoting Commonwealth v. Peters, 373 A.2d 1055, 1062 (Pa. 1977)).
Where an involuntary confession is obtained, the proper response is to suppress the inculpatory
evidence procured through an inaccurate representation that there would be no prosecution or
only certain charges would be filed. Stipetich, 652 A.2d at 1296.
In Commonwealth v. Stipetich, the Pittsburgh Police reached an agreement with the
defendant's attorney that if the defendant would answer questions about the source of the drugs
in his residence, no charges would be filed. Id. at 1294. Despite the defendant fulfilling his part
of the agreement, Allegheny County authorities filed charges. Counsel for defendant filed a
motion to dismiss, citing the non-prosecution agreement entered into with the Pittsburgh police.
The Court of Common Pleas of Allegheny County granted the motion, and the Superior Court
8
affirmed. On appeal, the Supreme Court reversed the Superior Court's order, finding the non-
prosecution agreement to be invalid because the Pittsburgh Police have no authority to bind the
Allegheny County District Attorney's office as to whether charges would be filed. Id. at 1295.
The Supreme Court reasoned that the decisions of the lower courts were based on the concern
that allowing the charges to be brought after the defendant performed his part of the agreement
would be fundamentally unfair because he may have disclosed information that could be used
against him. In reversing the lower court's decision, the Supreme Court held the proper response
to be one of suppression, not of dismissal. Thus, the Court reasoned, the defendant would be in
the same position as if the unauthorized promise had never been made. Id at 1296.
In the instant case, Defendant made inculpatory statements during an interview during
which he was free to leave and was represented by counsel. During the suppression hearing,
Detective Martin testified that he explained to Defendant during their meeting that if he "was
cooperative and I understand what he's doing .... that helps me gauge on the charging decision. If
that's the case and he's honest with me and I find what he's telling me I'm going to find, then I
would charge him with one count, but I couldn't ultimately determine what would happen with
the final disposition of the case." (NT pg. 30). While Defendant was told he was free to leave at
any time and did not need to speak with Detective Martin, the Court finds that the Detective was
a person in apparent authority to perform on his promise to only file one charge. Although
Detective Martin cannot bind the Centre County District Attorney's Office with promises as to
charging decisions, the prosecution cannot then use evidence obtained as a direct result of those
promises against Defendant. Therefore, given the totality of the circumstances, the Court finds
that Defendant's statements were not voluntary and must be suppressed. By ordering suppression
of this evidence, the Court has put Defendant back in same position as he would have been had
he not spoken to Detective Martin. Accordingly, Defendant's Motion to Suppress Statements is
9
GRANTED.
III. Motion to Dismiss
Based on the above rulings, Defendant's Motion to Dismiss is hereby DENIED.
ORDER
AND NOW, this 4th day of May, 2016, the Defendant's Omnibus Pre-Trial Motion is
hereby ruled upon as follows:
1. Defendant's Motion to Quash Search Warrant and Suppress Evidence is hereby
DENIED.
2. Defendant's Motion to Suppress Statements to Police is hereby GRANTED.
3. Defendant's Motion to Dismiss is hereby DENIED.
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