Com. v. Sellard, J.
2026 MDA 2016
| Pa. Super. Ct. | Sep 19, 2017Background
- Detective searching P2P networks found a computer sharing suspected child pornography with IP 71.58.192.38 and nickname pops1228@ARES; Comcast identified the subscriber as James Sellard at a Manheim Township address.
- Police obtained a court order under Pennsylvania’s Stored Wire and Electronic Communications and Transactional Records Access Act (18 Pa.C.S.A. § 5743) directing Comcast to disclose subscriber information and not notify the subscriber; that order was issued April 11, 2013.
- A search warrant executed June 20, 2013 produced a Dell computer, external hard drives, and images/videos that forensic testing identified as child pornography. Sellard was charged with two counts of sexual abuse of children (possession of child pornography).
- At suppression, defense argued subscriber name/address were “content” under §5743(b) requiring notice; the trial court held subscriber information was non‑content records and suppression was denied.
- Sellard waived a jury, was convicted at bench trial, found to be an SVP, and sentenced to two concurrent life terms under 42 Pa.C.S.A. § 9718.2.
- On PCRA review, Sellard argued trial counsel was ineffective for failing to press an overbreadth/vagueness challenge to the court order and appellate counsel ineffective for not raising that ineffectiveness on direct appeal; PCRA court denied relief and Superior Court affirmed.
Issues
| Issue | Plaintiff's Argument (Sellard) | Defendant's Argument (Commonwealth/PCRA court/trial counsel) | Held |
|---|---|---|---|
| Whether trial counsel was ineffective for not arguing the April 11, 2013 court order was overbroad/vague | Sellard: counsel should have preserved/pressed an overbreadth challenge to the order’s language; content argument had little chance | Counsel: strategically focused on the stronger §5743(b) “content” argument; overbreadth flowed from that and was raised in briefing | Denied — counsel had reasonable strategic basis; overbreadth claim lacked merit |
| Whether failure to raise overbreadth prejudiced Sellard (would outcome differ) | Sellard: alternative overbreadth argument offered greater chance of success | Commonwealth: April 11 order complied with §5743(d); not vague or overbroad; record and case law do not support the claim | Denied — no prejudice shown; underlying overbreadth claim not meritorious |
| Whether appellate counsel was ineffective for not raising trial counsel’s ineffectiveness on direct appeal | Sellard: appellate counsel should have raised trial counsel’s failure to preserve overbreadth | Appellate counsel/PCRA court: ineffectiveness claims generally deferred to PCRA; also underlying trial‑ineffectiveness claim lacked arguable merit | Denied — ineffectiveness claims not appropriate on direct appeal; no merit to underlying claim |
| Whether PCRA court’s denial of relief is reviewable for legal error/record support | Sellard: PCRA court erred in denying petition | Commonwealth: PCRA court’s findings are supported by record and law; deference applies | Affirmed — PCRA court’s decision supported and free from legal error |
Key Cases Cited
- Charleston v. Commonwealth, 94 A.3d 1012 (Pa. Super. 2014) (ineffective assistance test: arguable merit, no reasonable basis, prejudice)
- Johnson v. Commonwealth, 966 A.2d 523 (Pa. 2009) (prejudice requires reasonable probability that outcome would differ but for counsel’s errors)
- Koehler v. Commonwealth, 36 A.3d 121 (Pa. 2012) (counsel’s strategic choices are protected if they have a reasonable basis)
- Ligons v. Commonwealth, 971 A.2d 1125 (Pa. 2009) (counsel not ineffective for failing to raise meritless claims)
- Holmes v. Commonwealth, 79 A.3d 562 (Pa. 2013) (ineffectiveness claims generally deferred to PCRA; limited exceptions for direct appeal)