*1 authority appellant, a show of to the strate
namely, appellant’s when the vehicle inside, appellant so as to
stopped with that he was
suggest appellant
officially detained. case, however, the 8 In the instant entirely on escape was based
charge
Appellant’s comply failure to with Officer “stop get on
Pierce’s instructions (N.T. 11), Trial, ground” officer from his
which were uttered Appellant exited his own ve-
vehicle when At
hicle to flee foot. no time officer;
Appellant actually detained
indeed, suggest exactly oppo- the facts Appel-
site. Based on our conclusion that detained, officially
lant was never we hold sup-
that the evidence was insufficient to
port Appellant’s escape, conviction judgment
thus vacate his conviction and
sentence for this offense. all other judgment af-
respects, his of sentence is
firmed. Judgment AFFIRMED of sentence
in part part. and VACATED in Jurisdic- RELINQUISHED.
tion Pennsylvania,
COMMONWEALTH
Appellant SODOMSKY, Appellee.
Kenneth F. Pennsylvania.
Superior Court of
Argued 2007. Jan.
Filed Dec. 2007. Denied
Reargument Feb. *2 Chemosky,
wealth
Commonwealth v. A.2d n. 1 (Pa.Super.2007). ¶ 2 The evidence of this matter reveals following pertinent facts. Richard Easting was the senior sales assistant the technology department of the Circuit Road, City Store located on Woodland Wyomissing, County. Easting Berks Mr. 15, 2004, testified that on October Appel- lee, Sodomsky, came Eenneth to Circuit City Easting and asked Mr. to install an optical drive and DVD burner into his computer. The work order that Appellee executed that day authorized Circuit configure optical to install and drive desktop unit and DVD in his Shchuka, computer. Adrian S. Assistant District Attorney, Commonwealth, Reading, ap- for practice, 3 In accordance with store pellant. Easting Mr. summarized to during “what is done the installatiоn.” Boas, Pittsburgh,
Paul D. appellee. Suppression Hearing, N.T. at 16. BENDER, BEFORE: BOWES and part was informed that *, COLVILLE JJ. process, installation the installer would “have to make sure [the burner] DVD BOWES, BY OPINION J.: works.” Id. at 17. There is no indication asked how the DVD burner 1 The appeals Commonwealth from the in any would be tested or manner restrict- trial sup- court’s November 2005 order procedure what could be utilized to pressing review, evidence.1 After careful confirm operability. Appellee the burner’s we reverse. requested рerformed that the work be reviewing suppression When order basis, expedited an in- Easting Mr. clearly we follow a defined standard of him approximately structed to return in only review and consider the evidence one hour. together the defendant’s witnesses prosecution with the evidence from 4 Toby was in the Werner middle that, when read in Stephen the context of the the installation process when Ric- record, hert, entire personal computer remains uncontradictеd. the head of re- by are pairs City, bound the trial court’s find- at that Circuit arrived. Mr. ings findings of fact if those sup- are Richert testified that the DVD drive was record, ported by the but are not bound depart- installed when he arrived in the ment, yet its conclusions of law. Common- but the had software been * Judge Assigned Superior matter; Retired Senior caps prosecution its of this we there- Court. jurisdiction pursuant fore have to Pa.R.A.P. 311(d). appeal, 1. In its notice of the Commonwealth substantially certified that the order handi- software, in circum- certain explained Richert that all to the DVD installed. Mr. stances, the software and you if install players accompa- DVD burners properly you didn’t wasn’t installed nied software.2 Mr. Richert testified you try play notification and City, that at with “ev- receive specifically hardware, movie on “any play the files or DVD ery installation” of the *3 PC, that isn’t neces- you get distortion supplementary software” was installed you when install sarily right away seen courtesy a “and to make sure when both as store, guarantee it can it. leaves the we working.”
it Id. at 21. case, is So, make we wanted to this working types sure that all of files were installed, 5 After the Mr. software you get any type wouldn’t fine so general a search for a performed Richert you the different errors. install When More video to test the new DVD drive. software, something type of there’s specifically, he testified as follows: of soft- piece called code X. It’s a little software, Well, after we installеd the helps inside the the PC ware PC generic a search of the we did PC and translate video better understand menu, you you click on the start click on through players. different signals search, XP, and this the windows So, case, play if we a movie file this up a search box comes and it is custom blurring get we distorted colors or and system. operating made to this this image ghosting of the or a effect where case, system, way this it’s about half inverted, know there is a all color is we the screen on the left-hand side down and we problem with installation search, you a and can enter —in there’s If is a to find it and fix it. there case, you specific a this could enter to uninstall update, software we have you’re looking name of a file that for and it, if there was an issue. and reinstall find it. Id. at 22-23. looking anything spe- weren’t cific, generic so we did a search. Below Richert testified that once Mr. you the field where could enter given a search button was activated for for, you looking name of а file that are object, computer automatically loaded listed, you can click the generic boxes screen, onto the which requested files it, picture, you or if click it movie does Thus, after enlarge by itself. continued general of the and search whole PC initiated, Richert did Mr. search was any objects that type finds of that further to see manipulate case, you’re looking for. In this we at 30-31. The the entire list of videos Id. video, brings up clicked movies or and it appeared titles that first few video all the different formats of videos. innocuous. video list were Appellee’s However, log continued to many types of vid- as the video
There are
different
screen,
MPG-4,
which
compile on the
M-peg,
eo formats. There’s
intervention,
any human
AVI,
Any
of those
occurred without
Quick
types
Time.
porno-
to be
files,
appeared
Media
some of the files
place
if used to
on Windows
in nature due to their titles
graphic
that’s inher-
Player,
program
which is a
nаmes, ages first
XP or
included masculine
running
ent to PC when
windows
always
stalling
installed
request
the software and
Appellee maintains that he did not
accompanying a
installa-
Appellee’s
hardware
software
of the DVD software.
installation
However,
told that the hardware
tion.
is clear that Circuit
brief at 3.
in-
would be tested.
not test the hardware without
could
fourteen,
investigating
report
either
thirteen or
and sexual
that three men were
acts. Mr. Richert clicked on “the first
acting suspiciously
appeared
and
to be
appeared questionable,
one” that
and the
preparing
burglarize
a store. Police
video contained the lower torso of an un-
initiated surveillance of the threatened
male,
approached
clothed
and when a hand
premises
shortly
thereafter observed
penis,
immediately
the male’s
Richert
Mr.
men,
carrying
three
two
whom
stopped the video. Id. at 24. Mr. Richert
suitcases,
alley adjacent
in an
appear
mаnager
contacted his
and then tele-
approached
store. One
officers
phoned Wyomissing
police.
speak
the men and asked to
to them. The
carrying
two men who were
suitcases
cross-examination,
During
Ric-
Mr.
them,
all of
men
dropped
fled.
hert admitted that he had been told
*4
and discover-
Police searched
suitcases
Pennsylvania
Police Officer to con-
State
defendants,
The
weapons.
who
police
tact
if
ran
ap-
he ever
acrоss what
immediately apprehended,
were
raised
peared
pornography
to
child
at
be
while
objections
constitutional
to the search of
time,
work. At the
Mr. Richert was tak-
their
Supreme
suitcases. Our
Court con-
ing
college
hoped
a course at a local
and
to
dropped
that when the
cluded
defendants
enter the law enforcement field.
ran,
they
their
and
suitcases
abandoned
¶ Wyomissing
George
8
Police Detective
thus,
property
that
were not entitled
police
Bell and two other
respond-
officers
to contest the search.
ed to the call and viewed the same video
¶
clip.
Pennsylvania
When
arrived to retrieve his
11 The
that
Court noted
abandonment,
computer,
theory
Detective Bell
informed him
of
adopted
has
computer
that his
police
seized be-
applies
long
improper
which
as
as
police suspected
cause
it contained
conduct did not induce a defendant’s de-
pornography. Appellee responded
personal property.
sertion of his
Pursuant
they
that he knew what
had found and that
construct,
legal
to this
an
when
individual
his “life was over.” Id. at 87. Police took
relinquish
an intent
to
control
evidences
computer
police station,
to the
ob-
personal property,
over
he or she has
it,
tained a warrant to search
and discover-
privacy
property
abandoned a
in
pornography.
ed child
object
any ensuing
and cannоt
search of
by police.
the item
Abandonment revolves
¶
main-
appeal,
9 On
the Commonwealth
intent,
around the issue of
which is deter-
tains
the trial court erred
conclud-
words, acts,
all
mined
relevant
ing
privacy
retained a
inter-
existing
circumstances
at
the time the
volitionally
est
because he
property
purportedly
is
deserted. Accord
relinquished any
expectation
privacy
Sanders,
Pa.Super.
Commonwealth v.
407
by delivering
that item
it to Circuit
(1991) (“whether
270,
635,
638
employees knоwing
that those
person reasonably may expect that his or
going
were
to install and test a DVD drive.
be free from unwar-
possessions
her
shall
agree
part
We
with this contention.
governmental
depends
ranted
intrusion
¶
begin
10
with
our discussion
Com
circumstances”).
the facts and
Shoatz,
545,
469 Pa.
A.2d
monwealth
366
explained,
12
(1976),
As the Shoatz Court
extensively analyzes
1216
in the strict
“The issue is not abandonment
individuals have the
to con
whether
sense,
property-right
per-
but whether the
personal property
test
search of
by the
had volun-
privacy
prejudiced
inter
son
search
after
abandoned
behind,
Shoatz,
discarded,
tarily
left
or otherwise
est in that item.
the defendant had aban-
in concluded
relinquished
property
his interest
in the
privacy
expectation
retain
doned his
question
longer
so that he could no
drug
handing
pur-
them to the
drugs by
a reasonable
with
legitimate ex-
and that he had no
regard to it at the time of the search.”
chaser
Shoatz,
in that
individual’s
pectation
A.2d at 1220.
supra
grant
the defen-
mouth.
It also refused
theory
The
of abandonment is ex
object
standing to
to the
dant derivative
trapolated from the United States Su
drug
body under
purchaser’s
search of the
“the
preme Court’s observation
Constitution.
Pennsylvania
protects people,
Fourth Amendment
case, we limit our
present
15 In the
places.
person knowingly exposes
What
Ap-
to a determination of whether
pubhc,
inquiry
even
his own home
office,
in the videos
subject
pellee’s expectаtion
is not a
of Fourth Amend
relinquished
that he
protection.
ment
But what he seeks to on the
City employees
repairs
preserve
private,
even
an area acces Circuit
constitutionally
knowingly ex-
pubhc, may
sible to the
be
reasonable or whether he
States,
posed
computer’s
video files to the
protected.” Katz v. United
351-52,
voluntarily
he
public
U.S.
88 S.Ct.
19 L.Ed.2d
such that
abandoned
*5
(1967) (citations omitted);
in them. The trial
privacy
576
see also Oli his
interest
States,
170,
a
Appellee
pri-
104 court found that
did retain
ver v. United
466 U.S.
(1984) (defen
1735,
vacy
214
in the contents of the com-
S.Ct.
80 L.Ed.2d
interest
reasoning
expect
that he did not
the
expectation
puter,
dant did not have reasonable
published
in
contents “to be
privacy
computer’s
of
his visible real estate contain
than
of Circuit
ing marijuana).
anyone other
requested
the
complete
as needed to
¶ 14
Supreme
Our
Court has more re-
Opinion,
installation.” Trial Court
cently
in
principle
examined the
Common-
conclusion, thе trial
reaching
at 7. In
this
Hawkins,
v.
Pa.
wealth
553
718 A.2d
give
that
did not
court noted
(1998).
case,
265
the defendant
the
to delete
City employees
Circuit
individual,
an item to
handed
another
who
information,
files,
financial
or access
access
placed
then
it in mouth.
his
Pohce seized
“all
thereby
and so
did not lose
his e-mail
property,
the
and extracted the
individual
privacy
of
in his
subjective” expectation
drugs.
which consisted of illicit
Our Su-
Thus, the trial court
Id. at 8.
computer.
preme
to allow the defen-
Court refused
the com-
subsequent seizure of
found the
object
drugs,
dant to
to the seizure of the
illegal.
puter
be
noting that under current
Amend-
Fourth
this case
analogized
The trial court
jurisprudence, a defendant cannot
16
ment
Davis,
A.2d 946
v.
743
object
he
a
to Commonwealth
to a search unless
establishes
a
held that
(Pa.Super.1999),
“in
wherein we
legitimate expectation
privacy
of
relinquish
privacy
his
inter-
and that
tenant did not
area searched or effects seized”
merely
apartment
in an
because
also must be
est
such interest
sanctioned
rights
limited access
justifiable.
Id.
landlord had
society as reasonable and
not,
and that the landlord could
apartment
It continued that a
person privacy retains a expectation bank retained a reasonable records, First, and further held that a bank can- his videos. we observe submit the records to the Appellee gave employees permis- absence of a search warrant. The DeJohn perform sion to certain -actions relative to primarily decision was based on the fact requested his files. He and con- that an individual’s disclosurе of financial sented to the of a installation DVD drive entirely records to a bank was not volun- specifically and was informed that tary participate in that one cannot in mod- operability drive’s would be tested Cir- society obtaining ern without ac- bank City employees. Appellee cuit failed to count. The DeJohn Court also observed inquire either as to how the drive DVD that a customer discloses his financial rec- be tested or otherwise restrict would to a purpose, ords bank for limited to aid employees’ access to his files for affairs, in conduct of financial and that a Thus, purpose. Appellee should have expectation customer’s is not expos- been aware he faced a risk of merely diminished because a main- bank ing the contents of his video files. tains the records. Barth, F.Supp.2d United States v. Cf. (W.D.Tex.1998) (computer owner did Initially, we must observe that the not lose reasonable employ trial court did not proper legаl computer files contained searched First, standard. the court focused hard gave repairman, drive because owner question irrelevant whether informant, a confidential hard drive for gave City employees fi- access to purpose repairing problem limited unre- nancial records and e-mail files. These searched). lated to files that were searched; items were not what Appellee give did not employees permission to do analy- also it сritical *6 find to our is not the consideration. exam- We must pornography sis when the child give ine whether he did access or know- discovered, City employees the Circuit ingly files, risk access to his video testing operability the drive’s in DVD were the Fur- items discovered herein. commercially-accepted a manner rather thermore, contrary to the trial court’s conducting than a search for illicit items. conclusion, if Appellee exposed the video Barth, Appellee imрlies id. the Cf. computer contents of his to Circuit DVD drive should have been tested employees, he abandoned his in- inserting playing a Appellee’s DVD. in computer terest those contents because Nevertheless, noted, Appellee brief at 3. as those were members of the did not ask how the burner would be test- If public. Appellee knowingly published any ed nor he place did restrictions re- computer his video files to members of garding procedure. the manner of that As publiс, the he had no expecta- reasonable indicated, testimony Mr. Richert’s tion, law, applicable under the already in playing computer of videos files not video would be disseminated to ensuring a that the burner was manner individuals, including police. other functioning properly. Once the search noted, initiated, Appel- As abandonment a is for videos was list automatically question dependent upon appeared of intent and all lee’s videos on the - computer employee testing attendant facts and In screen. The circumstances. standard, pertinent any accordance with this to select video for burner was free testing purposes, we therefore will scrutinize all the facts had not re- Therefore, any and circumstances to determine whether stricted access to files. to other fishing they in not be distributed engage Mr. Richert did not would people, including police. expedition this case. noted,
¶20
the trial court overloоked
As
The final factor we utilize is the
facts and circumstances
the attendant
Appellee’s
volitional nature
actions.
improperly
upon
focused
this case and
case, Appellee
computer
this
removed the
grant-
had not
rights Appellee
what access
home,
from his
took the
to
computer
Cir-
City employees.
While
City,
cuit
and left it there
either
without
correct
may may
the trial court
or
not be
removing
containing
por-
the videos
child
interest
retainеd
nography
changing
or
titles
files,
or
computer
other
such as e-mail
videos so that
to
appear
did
records,3
pri-
financial
he did not retain a
Contrary
content.
to the cir-
vacy
in his videos under the facts
DeJohn, supra,
cumstances in
and circumstances herein.
person has little choice but to retain bank
society,
accounts
order to function in
priva-
23 Since
abandoned his
Appellee was not compelled to take this
cy interest
in the videos contained in the
particular computer containing
por-
object
computer, he cannot
to the subse-
nography
the store
the first
in-
quent viewing of the video list and file
stance, nor was he forced to leave it
noted,
police.
firmly
As
our decision is
there after
informed that the burn-
Pennsylvania authority;
rooted
current
er’s operability
Appel-
would be checked.
reject Appellee’s independent
we therefore
lee
pornography
was aware of the сhild
Pennsylvania
on the
reliance
Constitution
and could have elected to
the store
protest
leave
actions in this case.
with the computer rather
than risk dis-
¶ 24
result in this case is con
Our
covery of the pornographic files.
weight
authority
sistent with the
this
¶ 21 This scenario also stands in contrast
of,
person
freely
area.
If a
is
aware
with the landlord case
upon by
relied
grants
party,
to a
potential
third
access to
trial
Although
routinely
court.
landlords
contents,
knowingly
his
he has
retаin the
to inspect
premises
exposed
the contents of his
notice,
upon
people still retain a privacy
public
and has lost
reasonable
expectation in their home despite its status
in those contents.
*7
Here,
property.
however,
as rental
we
Simons,
E.g.
v.
searched network even attempted protect fendant to files from case, police In the not present 27 did State, search); network Lown 172 v. arriving Amendment in violate Fourth (defendant (Tex.App.2005) did S.W.3d 753 City, to the which computer. next expectation not have reasonable of granted had them premises, owned the in files on work which were repair though permission enter area authority up requеst at of people backed on-site employees. Accord McCul- company). at defendant’s (where lum, supra police permission had apartment, they tenant had be affirm, 25 As an alternative basis to vantage from to view point lawful that Mr. act- Appellee argues Richert was evidence); incriminating Common- cf. ing as he agent police an when (Pa.Su- v. A.2d English, wealth 839 1136 However, pornographic viewed the file. mari- per.2003) (police plain had view of theory sрecifi- of abandonment applies juana growing porch on defendant’s but cally by police. conducted searches by entering violated Fourth Amendment Since we find that abandoned warrant, consent, premises onto without in the reasonable circumstances; exigent plain view doc- videos, contents he prevail of the cannot apply). trine therefore did not The videos suppression regardless his motion of who they not in that could be obscured conducted the search. readily seen from that location. ¶ 28 conclude that incrimi- We also ¶26 suggests also nature imme- nating of the video files was improper of the seizure was diately apparent. Appellee suggests accomplished because it was without a depicted unclear whether the videos agree warrant. We with the Common police could not pornography because ex plain wealth’s assertion view male, age ascertain the of the nakеd whose ception requirement applied to the warrant revealed, portion face was plain provides herein. The view doctrine disagree. the video that viewed. We plain evidence view ignores assigned the titles warrant, Coolidge can be seized without his Mr. computer. videos on Richert stat- 443, Hampshire, v. New 403 91 S.Ct. U.S. name, that the listed a masculine titles 2022, (1971), modified L.Ed.2d 564 years age an of either thirteen old or California, Horton v. 496 U.S. years, types fourteen and “different of sex- (1990), L.Ed.2d аnd it S.Ct. Suppression Hearing, ual acts.” N.T. adopted by Supreme our Court titles, together The video McCullum, 529 Pa. Commonwealth clip a naked male a hand with with (1992). plain The view doc *8 “readily reaching penis, for the made it 1) applies trine if did not violate the apparent” that the videos were of Fourth course of during Amendment Finally, police pornography. had at the arrival location because, right lawful to access videos 2) question; the item viewed the item above, analyzed extensively Appellant plainly not obscured could be seen had abandoned reasonable 3) location; incriminating from that them. readily apparent; nature of item was 4) police had the lawful to access 29 Order reversed. Case remanded. McCullum, Horton, supra; relinquished. su- the item. Jurisdiction ¶30 Concurring Colville files Judge
Opinion. COLVILLE, J.:
Concurring Opinion must fail be challenge 1 Appellee’s expec he did not retain reasonable
cause in the contained
tation of videos delivering to Circuit computer after expecta
City. There no reasonable engage I not privacy, would
tion analysis. See Com
Majority’s plain view Viall, 419, 422 v.
monwealth (holding that a defendant
(Pa.Super.2005) challenge to the search prevail
cannot if the defendant
and seizure evidence expecta a legally cognizable
does searched). property
tion of
¶2 reasons, I concur For these
result. Pennsylvania,
COMMONWEALTH
Stephen THOMPSON, Appellant. P. Pennsylvania.
Superior Court of July 2007.
Submitted
Filed Dec. 7, 2008.
Reargument Denied Feb.