Commonwealth v. Manivannan ( 2018 )

J-A04043-18
2018 PA Super 112COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
AYYAKKANNU MANIVANNAN :
: No. 1661 MDA 2016
Appellant
Appeal from the Judgment of Sentence June 10, 2016
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0000017-2016,
CP-14-CR-0001124-2015
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 1693 MDA 2016
AYYAKKANNU MANIVANNAN
Appeal from the Judgment of Sentence June 10, 2016
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0000017-2016,
CP-14-CR-0001124-2015
BEFORE: STABILE, J., NICHOLS, J., and RANSOM*, J.
OPINION BY RANSOM, J.: FILED MAY 04, 2018
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
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* Retired Senior Judge assigned to the Superior Court.
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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
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1 18 Pa.C.S. §§ 7611(a)(2) and 2709(a)(7), respectfully.
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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
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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.
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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
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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,
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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 objection of the
Commonwealth, the trial court also prohibited Appellant “from being in the
Commonwealth of Pennsylvania except for the purpose of having contact with
the Centre County Probation and Parole Department.” Id.
In June 2016, the Commonwealth timely filed a motion to modify
sentence, arguing that the court’s stated reason for mitigating Appellant’s
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sentence was an unenforceable, unconstitutional prohibition on Appellant’s
right to travel. Commonwealth’s Motion to Modify Sentence, 6/20/2016 at 1-
4. The trial court denied the Commonwealth’s motion in September 2016;
however, the court removed its previously imposed restrictions banning
Appellant from entering or being within the Commonwealth of Pennsylvania.
Order, 9/9/2016.
In October 2016, the parties timely filed cross-appeals from the
Appellant’s judgment of sentence. Both parties timely filed court-ordered
Pa.R.A.P. 1925(b) statements, and the court filed a responsive opinion to each
respective appeal. This Court sua sponte consolidated the appeals in
November 2016. In January 2017, the Appellant and the Commonwealth
jointly filed a stipulation to correct or modify the record, attaching an
additional, one-page document titled, “Declaration by Custodian or Other
Qualified Person Pursuant to Pa.R.E. 902(11): Domestic Records of Regularly
Conducted Activity,” which was not previously included in the certified record
transmitted to this Court. Stipulation to Correct of Modify the Record,
1/31/2017. This was the boilerplate Pa.R.E. 902(11) declaration purporting
to certify the Comcast letter.
On appeal, Appellant presents the following issues for our review:
1. Did the trial court err by admitting into evidence an unsigned
letter from Comcast (the “Comcast letter”), the only evidence
linking Dr. Manivannan to the IP address allegedly used to
“hack” into the victim’s Gmail account, where the
Commonwealth failed to properly authenticate the letter under
Pa.R.E. 902(11), it was inadmissible hearsay, and where
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admitting the letter violated Dr. Manivannan’s right to confront
the witnesses against him under the United States
Constitution?
2. Did the trial court err by admitting printouts from the website
GeekTools.com identifying Comcast as the service provider for
the IP address allegedly used to “hack” into the victim’s Gmail
account, where the printouts and testimony about their
contents were inadmissible hearsay?
3. Was the lay testimony of Faith Beck, Partha Mishra, and Officer
Meyer legally sufficient to prove beyond a reasonable doubt
that someone using IP address 98.239.142.39 unlawfully
accessed Faith Beck’s Gmail account five times on July 12, 17,
and 18, 2014, as required for the convictions for unlawful use
of a computer under 18 Pa.C.S. § 7611(a)(2)?
Appellant’s Brief at 2-3 (some formatting added). The Commonwealth
presents the following issue for our review:
1. Whether the sentencing court abused its discretion in sentencing
[Appellant] to the mitigated range of the sentencing guidelines.
Commonwealth’s Brief at 6 (some formatting added). We begin our discussion
with a review of Appellant’s claims.
In his first claim, Appellant asserts that it was prejudicial error to admit
the Comcast letter and advances two arguments in support of this challenge.
Appellant’s Brief at 21-46. First, according to Appellant, the Commonwealth
failed to authenticate properly the Comcast letter under Pa.R.E. 902(11). Id.
Thus, Appellant concludes that the letter was inadmissible hearsay. Moreover,
Appellant suggests the letter was highly prejudicial, as its contents permitted
the jury to conclude that Appellant unlawfully hacked into the victim’s email,
“sending both electronic communications about [Ms.] Beck’s personal life to
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her mother and sister, and a non-verbal message to [Ms.] Beck directly that
he was watching her.” Appellant’s Brief at 36-37. Second, and in the
alternative, Appellant suggests that admission of the Comcast letter violated
his constitutional right to confront the witnesses against him. Id. at 21-33.2
For these reasons, Appellant concludes that he is entitled to a new trial. Id.
at 21, 58.
Our standard of review is well-settled:
The admission of evidence is solely within the discretion of the
trial court, and a trial court’s evidentiary rulings will be reversed
on appeal only upon an abuse of that discretion. An abuse of
discretion will not be found based on a mere error of judgment,
but rather occurs where the court has reached a conclusion that
overrides or misapplies the law, or where the judgment exercised
is manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will.
Commonwealth v. Witmayer, 144 A.3d 939, 949 (Pa. Super. 2016)
(citation omitted). To constitute reversible error, an evidentiary ruling must
not only be erroneous, but also harmful or prejudicial to the complaining party.
Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa. Super. 2012) (citing
McNanamon v. Washko, 906 A.2d 1259, 1268–69 (Pa. Super. 2006)).
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2 In its opinion, the trial court suggested that Appellant failed to preserve his
claim challenging the admissibility of the Comcast letter by not renewing the
objection when the letter was formally entered into the record. Trial Court
Opinion (TCO), 1/4/2017, at 2. Appellant was not required to renew the
previously overruled objection to preserve his claim. Pa.R.E. 103(b) (“Once
the court rules definitively on the record--either before or at trial--a party
need not renew an objection or offer of proof to preserve a claim of error for
appeal.”).
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“[A]n evidentiary error of the trial court will be deemed harmless on appeal
where the appellate court is convinced, beyond a reasonable doubt, that the
error could not have contributed to the verdict.” Commonwealth v.
DeJesus, 880 A.2d 608, 614 (Pa. 2005) (citing Commonwealth v. Story,
383 A.2d 155, 164–66 (Pa. 1979)).
Hearsay is an out of court statement offered to prove the truth of the
matter asserted. Pa.R.E. 801(C). Generally, it is not admissible, as it “lacks
guarantees of trustworthiness fundamental to [our] system of jurisprudence.”
Commonwealth v. Smith, 681 A.2d 1288, 1290 (Pa. 1996) (quoting
Heddings v. Steele, 526 A.2d 349, 351 (Pa. 1987)). In order to guarantee
trustworthiness, the proponent of a hearsay statement must establish an
exception to the rule of exclusion before it shall be admitted. Id.At issue here is whether the Comcast letter meets the requirements of
the exception for business records. Pennsylvania Rule of Evidence 803
provides, in relevant part:
The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a witness: ...
(6) Records of a Regularly Conducted Activity. A record
(which includes a memorandum, report, or data compilation in any
form) of an act, event or condition if,
(A) the record was made at or near the time by – or from
information transmitted by – someone with knowledge;
(B) the record was kept in the course of regularly conducted
activity of a “business”, which term includes business,
institution, association, profession, occupation, and calling
of every kind, whether or not conducted for profit;
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(C) making the record was a regular practice of that activity
(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a
certification that complies with Rule 902(11) or (12)
or with a statute permitting certification; and
(E) neither the source of information nor other circumstances
indicate a lack of trustworthiness.
Pa.R.E. 803(6) (emphasis added). Rule of Evidence 902 provides:
The following items of evidence are self-authenticating; they
require no extrinsic evidence of authenticity in order to be
admitted:
***
(11) Certified Domestic Records of a Regularly
Conducted Activity. The original or a copy of a domestic
record that meets the requirements of Rule 803(6)(A)-(C), as
shown by a certification of the custodian or another qualified
person that complies with Pa.R.C.P. No. 76. Before the trial
or hearing, the proponent must give an adverse party
reasonable written notice of the intent to offer the record--
and must make the record and certification available for
inspection--so that the party has a fair opportunity to
challenge them.
Pa.R.E. 902(11).
The Commonwealth did not present testimony from a record custodian
or other qualified witness. Rather, it sought to authenticate the Comcast letter
by certification. 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 document consists of a single-page and includes
boilerplate language asserting that the “attached documents” comport with
the requirements of Rule 803(6)(A)-(C). Id. Further, we note that the
document was executed nineteen months after the Comcast letter, signed by
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an individual named Joseph Krysiak3 who is identified only as “a Legal Analyst
II,” and tendered separately from the Comcast letter. Id. There were no
additional documents attached, e.g., the letter itself. Id. Thus, there is no
discernable correlation between this document and the evidence it purports to
authenticate. Based upon these deficiencies, we cannot accept that the
Comcast letter is self-authenticating, see Pa.R.E. 902(11), nor can the
Commonwealth guarantee the trustworthiness of its contents. Smith, 681
A.2d at 1290. Accordingly, the court erred in admitting this evidence.
Moreover, the court’s error was not harmless. Although the
Commonwealth presented evidence that Ms. Beck’s account was accessed
from numerous IP addresses, the Comcast letter provided the only direct
evidence of Appellant’s connection to one of those addresses, and that
connection formed the specific, factual predicate for the five counts of unlawful
use of a computer. We also agree with Appellant that the admission of the
Comcast letter was prejudicial to Appellant in the context of the harassment
conviction,4 as the Commonwealth relied heavily upon Appellant’s access to
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3This name is printed by hand on the form and is not completely legible. We
believe “Krysiak” is the correct spelling but are not certain.
4 Harassment under (a)(7) provides that “[a] person commits the crime of
harassment when, with intent to harass, annoy or alarm another, the person
… communicates repeatedly in a manner other than [through any lewd,
lascivious, threatening or obscene words, language, drawings or caricatures;
an anonymous manner; or at extremely inconvenient hours.”] 18 Pa.C.S.
§ 2709(a)(7).
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Ms. Beck’s email to establish his intent to harass. See Appellant’s Brief at 35-
47. In its closing argument, the prosecutor for the Commonwealth asserted
the following:
[Appellant] knows [Ms. Beck] doesn’t want to communicate with
him. He even admits it in one of his text messages and you can
see the way he is controlling her through these messages,
harassing her. So what does he do to continue to control her and
manipulate her? He decides he wants to get into her email
because he wants to know who she is talking to, where she is
going, what she is doing, so he finds out about a trip that
[Ms. Beck] is planning for Falling Water and how does he do that?
Through those e-mails. []On the very day that that e-mail is
forwarded to her mom about the bed and breakfast in Falling
Water her email is hacked and that is confirmed through the IP
address [in Los Angeles] and we know that [Appellant] was in Los
Angeles for work. [] And it all comes to light when [Ms. Beck] and
[Mr. Mishra] go to Falling Water that day and who do they see but
[Appellant]. Another way that he is just letting her know[:]
I know where you are, I know who you are with, and I know what
you are doing. He didn’t have to say anything to her. She knew.
N.T., 4/19/16, at 248-50 (some formatting added).
As we are not convinced, beyond a reasonable doubt, that the admission
of the Comcast letter did not contribute to the verdict, the court’s error was
not harmless. DeJesus, 880 A.2d at 614. Accordingly, we are constrained
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to conclude that the Appellant is entitled to a new trial.5 Lopez, 57 A.3d at
81.6
Next, Appellant avers that the court erred in admitting documents
downloaded from GeekTools.com, as the documents and testimony about
their contents constitute hearsay. Appellant’s Brief at 47-49. According to
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5 As we dispose of Appellant’s claim on the basis of his first argument, we
need not examine his alternative argument. Nevertheless, we note that
Appellant asserts, for the first time on appeal, that the admission of the
Comcast letter violated the Confrontation Clause of the Sixth Amendment to
the United States Constitution. See Appellant’s Brief at 30-34. Issues not
properly preserved in the trial court are waived. Pa.R.A.P. 302(a) (“Issues
not raised in the lower court are waived and cannot be raised for the first time
on appeal.”); Commonwealth v. Elrod, 572 A.2d 1229, 1232 (Pa. Super.
1990) (recognizing that even issues of constitutional dimension may be
waived where raised for the first time on appeal).
6 In Appellant’s Application for Leave to File Post-Submission Supplemental
Authority, Appellant “applied . . . for leave to file as post-submission
supplemental authority” Commonwealth v. Mangel, ___ A.3d ___, 2018 Pa.
Super. 57 (filed Mar. 15, 2018), “as it relates to the proper standard for
authentication of electronic, social media evidence.” Appl. for Leave to File
Post-Submission Suppl., 4/2/18, at 1-2. However, none of Appellant’s issues
raised on appeal concern the authentication of electronic, social media
evidence. Appellant’s first issue, analyzed above, involves the authentication
of a business record, the Comcast letter, and not social media evidence.
Appellant’s Brief at 21-46. His alternative argument focused on the prejudicial
nature of certain electronic communications, id. at 36-37, but did not concern
the authentication of those communications, and we did not need to reach
that argument, in any event. None of Appellant’s other issues on appeal relate
to authentication or to electronic, social media evidence. Id. at 2-3, 47-58.
Thus, although we granted Appellant’s Application for Leave to File Post-
Submission Supplemental Authority and considered Mangel, 2018 Pa. Super.
57, we conclude that Mangel is inapposite to the current appeal.
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Appellant, this evidence was offered to prove that Comcast was the internet
service provider for IP address 98.239.142.39. Id.7 We disagree.
As previously outlined, “hearsay is an out of court statement offered for
the truth of the matter asserted and is inadmissible unless it falls within an
exception to the hearsay rule.” Commonwealth v. Mosley, 114 A.3d 1072,
1084 (Pa. Super. 2015); see also Pa.R.E. 801, 802. Such exceptions include
statements that would establish motive, the existence of a plan, or would
similarly “complete the story.” See Commonwealth v. Mayhue, 639 A.2d
421, 434 (Pa. 1994); see also Commonwealth v. Levanduski, 907 A.2d 3,
13 (Pa. Super. 2006). Specifically, “[s]ometimes, out-of-court statements are
offered not to prove the truth of the matter asserted but, for example, to
explain the course of conduct undertaken by an investigating police officer.
Such statements are not hearsay.” Commonwealth v. Hardy, 918 A.2d
766, 777 (Pa. Super. 2007) (citation omitted); accord Commonwealth v.
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7 The trial court’s analysis for this issue is, in its entirety:
Appellant argues that the Court erred by admitting testimony
regarding Exhibit 70, computer printouts from GeekTools.com,
and any related testimony about the exhibit on grounds of
hearsay. In response to this issue, on cross examination Appellant
at no point objected to the testimony given by Officer
Jessica Meyer[] about Exhibit 70, nor to its later entry into
evidence on any grounds, including hearsay, in order to preserve
the issue.
TCO at 5-6. However, during Officer Meyer’s testimony, Appellant objected
to any reference to the website, GeekTools.com, as hearsay. N.T., 4/19/16,
at 14. Thus, Appellant preserved this challenge.
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Chmiel, 889 A.2d 501, 532–33 (Pa. 2005); Commonwealth v. Dent, 837
A.2d 571, 579 (Pa. Super. 2003) (“It is, of course, well established that certain
out-of-court statements offered to explain a course of police conduct are
admissible. Such statements do not constitute hearsay since they are not
offered for the truth of the matters asserted; rather, they are offered merely
to show the information upon which police acted.” (citations omitted)).
Here, testimony about the Geektools.com website and the
accompanying thirty-six printouts displaying the contents of Officer Meyer’s
search were not entered into evidence to prove that Appellant unlawfully
accessed Ms. Beck’s email. Chmiel, 889 A.2d at 532–33; Mosley, 114 A.3d
at 1084; Hardy, 918 A.2d at 777; Dent, 837 A.2d 571, 579. Evidence of the
website merely described the progression of Officer Meyer’s investigation. As
such, these materials were admissible.
In his third issue, Appellant claims that the evidence was insufficient to
sustain his convictions for unlawful use of a computer, because Ms. Beck,
Mr. Mishra, and Officer Meyer were not competent to draw conclusions from
the information in Ms. Beck’s email account settings that depicted multiple
instances of disparate IP addresses accessing her account from approximate
geographic locations. See Appellant’s Brief at 49-58. Appellant continues:
although the Commonwealth relied heavily on technical
information purportedly appearing in the security settings of
[Ms.] Beck’s Gmail account, the Commonwealth failed to present
an expert witness to interpret that information, relying instead on
[these] three lay witnesses with no relevant training to interpret
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that technical information and to explain its significance to the
jury.
Id. at 49-50. He contends that the factual issues – specifically, the use of
Google Data and an IP address to prove unlawful access of Ms. Beck’s
computer -- were “beyond the ken of the ordinary layman” and “require expert
testimony,” because “the subject of unique IP addresses as they relate to web-
based e-mail accounts is both technical and complex.” Id. at 50-51, 53. He
concludes: “The Commonwealth’s lay witnesses were therefore incapable of
reliably interpreting the Google images or the information they contained
because they lacked special training or experience in computers or computer
forensics.” Id. at 56. As the Commonwealth “relied exclusively on its lay
witnesses to testify in support of the proposition that the Google images
established that [Ms.] Beck’s account was accessed by someone physically
located at the approximate location (based on IP) appearing in the images,”
which Appellant argues was improperly admitted, the “evidence was,
therefore, legally insufficient to establish that [Appellant] perpetrated the five
computer crimes.” Id. at 57-58 (internal brackets and quotation marks
omitted).
We have uncovered no Pennsylvania case law on this issue, and neither
party nor the trial court has provided us with any. We thus believe that this
appeal is a case of first impression for our Pennsylvania courts. When
confronted with a question heretofore unaddressed by the courts of this
Commonwealth, we may turn to the courts of other jurisdictions. “Although
we are not bound by those decisions,” “we may use decisions from other
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jurisdictions for guidance to the degree we find them useful and not
incompatible with Pennsylvania law.” Newell v. Mont. W., Inc., 154 A.3d
819, 823 & n.6 (Pa. Super. 2017) (citation and internal quotation marks
omitted). Upon our review, we have discovered that the question of whether
expert testimony is required to explain records of email transmissions and the
nature of IP addresses has only been considered by a paucity of other
jurisdictions. However, in those handful of jurisdictions that have ruminated
on the issue, all have agreed that expert testimony is required and that the
testimony of a lay witness is insufficient to permit the admission of e-mail
transmission and IP address records and the affiliation between IP addresses
and physical addresses.
The most recent case uncovered by our research that analyzes this
question is People v. Garrison, 411 P.3d 270 (Colo. App. 2017), cert.
denied, 2018 WL 582107, No. 17SC677 (Colo. filed Jan. 29, 2018). In
Garrison, the appellant had established a Gmail account through Google in
the victim’s name; when police subpoenaed Google about the Gmail account,
Google identified two IP addresses associated with the Gmail account – one
at the appellant’s residence and the other at the appellant’s wife’s employer.
Id. at 273. The Colorado Court of Appeals outlined the general issue, as
follows:
The common knowledge and experience of an ordinary person
have become one marker of the boundary separating lay from
expert testimony. This case involves lay witness testimony about
e-mail. So, one might wonder whether this ubiquitous person
would be aware that
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• the record of each e-mail transmission includes an
Internet Protocol (IP) address from which the transmission
initiated;
• the IP address can be linked to an Internet service provider
(ISP); and
• in turn, the ISP can often trace the IP address to the
physical address of a particular ISP customer?
Despite the dramatic increase in use of e-mail, we join the few
jurisdictions to have addressed this question and conclude that
such a person would not be aware of these facts, at least in the
combination used by the prosecution to explain how the
investigation began with charges against the victim, but led to
evidence of criminal acts by defendant, Lawson P. Garrison.
Id. at 272-73.
In its analysis, id. at 278, the Colorado Court of Appeals relied on
Colorado Rule of Evidence 701, governing the admission of lay testimony:
If the witness is not testifying as an expert, the witness’ testimony
in the form of opinions or inferences is limited to those opinions
or inferences which are
(a) rationally based on the perception of the witness,
(b) helpful to a clear understanding of the witness’
testimony or the determination of a fact in issue, and
(c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.
C.R.E. 701 (some formatting added).
This rule is substantially similar to the Pennsylvania Rule of Evidence
governing the admission of lay testimony:
If a witness is not testifying as an expert, testimony in the form
of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
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(b) helpful to clearly understanding the witness's testimony
or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.
Pa.R.E. 701.
The Colorado court continued to explain the law distinguishing lay
testimony from expert testimony:
After Garrison’s trial, our supreme court “clarified the standard
that distinguishes lay testimony from expert testimony,” [People
v.] Howard-Walker, [___ P.3d ___, 2017 COA 81M] ¶ 50 [(Colo.
App. filed June 15, 2017), in three opinions: Marsh v. People,
2017 CO 10M, 389 P.3d 100; Venalonzo v. People, 2017 CO 9,
¶¶ 17-25, 388 P.3d 868; and People v. Ramos, 2017 CO 6, 388
P.3d 888.
Take the standard first. To determine “whether testimony is lay
testimony under CRE 701 or expert testimony under CRE 702, the
trial court must look to the basis for the opinion.” Venalonzo,
¶ 23.
Then consider its reasoning. To distinguish between lay and
expert testimony, “the proper inquiry is not whether a witness
draws on her personal experiences to inform her testimony; all
witnesses rely on their personal experience when testifying.” Id.
at ¶ 22. Rather, “the nature of the experiences that could form
the opinion’s basis ... determines whether the testimony is lay or
expert opinion.” So, expert testimony “is that which goes
beyond the realm of common experience and requires
experience, skills, or knowledge that the ordinary person
would not have.” Id.
The supreme court recognized that this “distinction can be a
difficult one.” Id. at ¶ 24. To be sure, “[t]his is particularly the
case when the witness is a police officer.” Howard-Walker, ¶ 51.
Garrison, 411 P.3d at 278 (emphasis added).
This Court has articulated an analogous standard to distinguish expert
testimony from lay testimony – i.e., that expert testimony “reflects the
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application of expertise” and does not “stray[] into matters of common
knowledge.” Nobles v. Staples, Inc., 150 A.3d 110, 114 (Pa. Super. 2016)
(citation omitted). We have further explained that expert testimony “requires
knowledge, information or skill beyond what is possessed by the ordinary
juror,” Ovitsky v. Capital City Econ. Dev. Corp., 846 A.2d 124, 126 (Pa.
Super. 2004) (quoting Commonwealth v. Carter, 589 A.2d 1133, 1134 (Pa.
Super. 1991)), and that expert testimony must be “distinctly related to a
science, skill or occupation which is beyond the knowledge or experience of
an average lay person” and does not “involve[] a matter of common
knowledge.” Commonwealth v. Minerd, 753 A.2d 225, 230 (Pa. 2000).
Thus, the law used by the Colorado Court of Appeals is compatible with
Pennsylvania law. See Newell, 154 A.3d at 823 n.6.
The Colorado Court of Appeals continued its analysis, as follows:
Everyone would agree that e-mail has become “a significant form
of communications.” 1 Raymond T. Nimmer, Information Law
§ 8:53, Westlaw (database updated May 2017). At least 250
reported Colorado cases refer to “e-mail.”[8] For this reason, an
ordinary person may have some idea of what role an IP address
plays in e-mail. . . .
But the testimony by Detective Garcia and Officer Calloway went
much farther.
Would the character string produced by Google be more than a
maze to the ordinary person? Probably not. . . . But the officers
picked out the IP addresses.
____________________________________________
8A similar search of Pennsylvania cases yielded a result of about 660 published
opinions and at least 1,980 cases total that refer to “email” or “e-mail.”
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Yet, even if an ordinary person could also pick out the IP
addresses, why would such a person know more than Officer
Calloway? After all, he acknowledged that after having received
these addresses from Google, he sent them to the department’s
computer investigators to identify the associated ISPs.
And what reason would an ordinary person have to understand
the final step in the investigation—an ISP’s ability to trace an IP
address to a particular customer’s physical location? The Attorney
General does not suggest such a reason, nor can we discern one.
...
[T]he concept of an e-mail transmission including an IP address,
which can be linked to an ISP, and in turn traced to the physical
location of a particular ISP customer, is not within the knowledge
or experience of ordinary people. Thus, because some of the
police testimony on direct examination was based on particular
experience and specialized knowledge within the scope of Rule
702, we conclude that the trial court abused its discretion in
admitting this portion of the testimony as lay testimony. See CRE
701(c).
Garrison, 411 P.3d at 279-81 (footnote omitted).
The Court of Special Appeals of Maryland also considered whether “the
nature of an IP address” and “the arcane question of whether each IP address
is ‘unique’ to a particular device or network” requires expert testimony in Ali
v. State, 2017 WL 128636, No. 1252 Sept. Term 2014 (Md. Ct. Spec. App.
filed Jan. 13, 2017) (unreported).9 In that case, the appellant repeatedly
threatened and harassed her former psychologist by “sending her numerous
text messages, hacking into her private email account, and copying a
____________________________________________
9Although we prefer to avoid citation to unreported opinions of any court, the
scarcity of case law on this subject compels us to consider all available writings
on this topic. The court in Garrison likewise observed: “The relative paucity
of precedent addressing common knowledge of IP addresses may be explained
because in the vast majority of reported cases, testimony on IP addresses has
been presented through expert witnesses.” 411 P.3d at 280.
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privileged communication between her and her attorney.” 2017 WL 128636at *1. During the investigation, a detective subpoenaed certified records from
internet service providers. Id. at *2. Those records included an “access
history log” that “would disclose the IP address of the device or network that
was used to access the [psychologist’s email] account.” Id. at *3. “[A]n IP
address associated with [the appellant] had accessed [the psychologist]’s
email accounts.” Id. This “access history log” is therefore the same as the
“account history” at issue in the current case. Id.; N.T., 4/18/16, at 123.
The Court of Special Appeals considered whether expert testimony was
required to explain the “unique” nature of an IP address and what conclusions
can be drawn therefrom. 2017 WL 128636 at *5. The court determined that
these were “question[s] of computer science that [are] beyond the ken of
ordinary laypersons and, hence, ordinarily should be the subject of expert
testimony.” Id. (emphasis added) (citation and internal quotation marks
omitted). This language of knowledge “beyond the ken” of ordinary
laypersons parallels language that has been used by the courts of this
Commonwealth to explain expert testimony. See, e.g., Commonwealth v.
Griffith, 32 A.3d 1231, 1239 (Pa. 2011) (“Pursuant to our general standard,
a need for expert testimony arises when the jury is confronted with factual
issues whose resolution requires knowledge beyond the ken of the ordinary
layman.” (emphasis added) (citation and internal quotation marks omitted));
Young v. Com., Dep’t of Transp., 744 A.2d 1276, 1278 (Pa. 2000) (“[T]he
employment of testimony of an expert rises from necessity, a necessity born
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of the fact that the subject matter of the inquiry is one involving special skill
and training beyond the ken of the ordinary layman.” (emphasis added)
(citation and internal brackets omitted)); Burlington Coat Factory of Pa.,
LLC v. Grace Const. Mgmt. Co., LLC, 126 A.3d 1010, 1021 (Pa. Super.
2015) (“Expert testimony is necessary when a case presents questions
beyond the ken of the average layperson.” (emphasis added)).
The Court of Special Appeals of Maryland continued:
the detective based his conclusions on subpoenaed documents
that were not themselves self-explanatory, but required some
degree of specialized training and erudition to interpret. See
State v. Payne, 440 Md. 680, 700 (2014). Most notably, the
“access history log” for [the psychologist]’s email account contains
columns labeled “pass” and “fail.” The meaning of those columns
and their contents would be opaque at best to ordinary
laypersons, but the detective, implicitly relying on his specialized
training, purported to interpret them to indicate whether an
attempt to access the account had succeeded.
Ali, 2017 WL 128636 at *5. The court concluded that, due to the need for
this specialized training and education, expert testimony was required. Id.A case from the United States District Court for the Southern District of
Florida, Hydentra HLP Int. Ltd. v. Luchian, 2016 WL 5951808, Case No.
1:15-cv-22134-UU (S.D. Fla. filed June 2, 2016), arose “out of the uploading
of Plaintiff’s protected videos onto Defendants’ websites by third-party users.”
2016 WL 5951808 at *1. The plaintiff intended to rely upon the testimony of
Jason Tucker, the director of an intellectual property and anti-piracy
investigation company, that “of the 111 ‘pieces of Plaintiff’s video content’ that
were uploaded to the database, 11 of the uploaded videos display an [IP]
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address ‘from which the video was uploaded’ that begins with 0.0, and an IP
address that begins with 0.0 means that it is from an internal, local network.”
Id. at *11. However, the plaintiff did not designate Mr. Tucker to testify as
an expert witness. Id.
In considering the admissibility of Mr. Tucker’s testimony, the court
relied upon Federal Rule of Evidence 701, which is identical to Pennsylvania
Rule of Evidence 701. Based upon this Rule, the United States District Court
for the Southern District of Florida concluded:
In this case, the testimony of Jason Tucker is plainly offered to
support the broad claim that Defendants themselves uploaded
some of the copyright videos onto their websites based upon his
review of the 111 IP addresses. This proposition is an inference
well beyond what witnesses perceive in their day-to-day lives;
rather, it is a conclusion that would require “specialized
knowledge,” [Fed. R. Evid.] 701, and must be proved by an
appropriately credentialed expert witness to be properly admitted.
2016 WL 5951808 at *11. The court thus decided that expert testimony was
required to establish the connection between an IP address and the physical
origin of the computer or other device and precluded Mr. Tucker from
testifying. Id.In NTP Marble, Inc. v. AAA Hellenic Marble, Inc., 2012 WL 607975,
Civil Action No. 09-cv-05783 (E.D. Pa. filed Feb. 27, 2012) (memorandum),
the United States District Court for the Eastern District of Pennsylvania
considered whether it could take judicial notice of “the significance of unique
IP addresses and web-based email accounts.” 2012 WL 607975 at *6 n.10.
The court cites to Ohio Bell Tel. Co. v. Pub. Util. Comm’n of Ohio, 301
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U.S. 292, 301 (1937), to establish that “courts take judicial notice of matters
of common knowledge.” 2012 WL 607975 at *6 n.10.10 The court found that
how unique IP addresses and web-based email accounts are “obtained,
maintained, monitored, controlled, and accessed are not matters of ‘common
knowledge,’ and thus it would be inappropriate for this [c]ourt to take judicial
notice” of those facts. Id.Although NTP Marble was considering whether the court could take
judicial notice and the current appeal concerns whether expert testimony is
required, NTP Marble’s conclusion that the maintenance, monitoring, control,
and access of unique IP addresses and web-based email accounts are not
“common knowledge” is still useful. 2012 WL 607975 at *6 n.10. As noted
above, expert testimony does not “involve[] a matter of common knowledge.”
Minerd, 753 A.2d at 230; see also Nobles, 150 A.3d at 114 (expert
testimony “reflects the application of expertise” and does not “stray[] into
matters of common knowledge”). Thus, if, pursuant to NTP Marble, “the
significance of unique IP addresses and web-based email accounts” is not
____________________________________________
10 Pennsylvania uses this same formula for determining whether a court can
take judicial notice of a fact. “A court may take judicial notice of an
indisputable adjudicative fact. A fact is indisputable if it is so well established
as to be a matter of common knowledge.” Commonwealth v. Brown, 839
A.2d 433, 435 (Pa. Super. 2003) (internal citation and quotation marks
omitted) (holding that information obtained from Internet as to distance
between offense and nearby school could not serve as basis upon which trial
court took judicial notice that defendant delivered drugs within 1,000 feet of
a school zone, because the Internet site, MapQuest, which purports to
establish distances between two locations, is not so reliable that its accuracy
cannot reasonably be questioned).
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“common knowledge,” and if expert testimony is necessary for areas outside
of common knowledge, then “the significance of unique IP addresses and web-
based email accounts” requires expert testimony. NTP Marble, 2012 WL
607975 at *6 n.10; see also Nobles, 150 A.3d at 114; Minerd, 753 A.2d at
230.
Hence, although there is not extensive case law on the subject, all of
the courts that have considered whether the connection between IP addresses
and real-world locations requires expert testimony or if this link is common
knowledge, have concluded that such information and any facts derived
therefrom cannot be considered common knowledge and therefore require
expert testimony. Garrison, 411 P.3d 270; Ali, 2017 WL 128636; Hydentra,
2016 WL 5951808; see also NTP Marble, 2012 WL 607975. Additionally,
we have uncovered no case law concluding to the contrary.
Thus, we are constrained to agree with Appellant that the trial court
abused its discretion in permitting Ms. Beck, Mr. Mishra, and Officer Meyer to
draw conclusions from the information in Ms. Beck’s email account settings
that depicted multiple instances of disparate IP addresses accessing her
account from approximate geographic locations. Appellant’s Brief at 49-58;
Witmayer, 144 A.3d at 949. Any such information and conclusions drawn
therefrom required expert testimony, and its admission via lay testimony was
therefore improper. Garrison, 411 P.3d 270; Ali, 2017 WL 128636;
Hydentra, 2016 WL 5951808; see also NTP Marble, 2012 WL 607975. We
also agree with Appellant that, without establishing the affiliation between IP
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addresses and real-world physical locations, the Commonwealth would not
have been able to prove Appellant’s unlawful use of computer convictions.
Appellant’s Brief at 57-58. Accordingly, Appellant suffered prejudice from
improperly admitted evidence. For that reason, again, we must reverse and
remand for a new trial. Levant v. Leonard Wasserman Co., 284 A.2d 794(Pa. 1971) (erroneous admission of evidence is grounds for reversal where it
has a tendency to draw the minds of the jury from the issue and to prejudice,
confuse, or mislead them); Commonwealth ex rel. Buchakjian v.
Buchakjian, 447 A.2d 617 (Pa. Super. 1982) (especially where erroneously
admitted evidence goes to the heart of a determinative issue, the court must
reverse and remand for a new trial).
The Commonwealth, in its single issue on appeal, challenges the
discretionary aspects of Appellant’s sentence. Commonwealth’s Brief at 17-
23. The Commonwealth avers that the trial court failed to place sufficient
reasons on the record for its deviation from the sentencing guidelines in
sentencing Appellant to a mitigated range sentence. Id. at 14. Challenges to
the discretionary aspects of sentencing do not entitle an appellant to an appeal
as of right. Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000).
Prior to reaching the merits of a discretionary sentencing issue:
[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. 720; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
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(4) whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (most
citations omitted).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating that there is a substantial question
as to the appropriateness of the sentence under the Sentencing Code.
Commonwealth v. Mouzon, 812 A.2d 617, 621 (Pa. 2002); Pa.R.A.P.
2119(f). “The requirement that an appellant separately set forth the reasons
relied upon for allowance of appeal furthers the purpose evident in the
Sentencing Code as a whole of limiting any challenges to the trial court’s
evaluation of the multitude of factors impinging on the sentencing decision to
exceptional cases.” Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa.
Super. 2008) (emphasis in original) (internal quotation marks omitted).
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. See Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa. Super. 2003). A substantial question exists “only when
the appellant advances a colorable argument that the sentencing judge’s
actions were either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms which underlie
the sentencing process.” Sierra, 752 A.2d at 912-13.
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As an initial matter, we note that the Commonwealth timely filed a
notice of appeal, preserved the instant issue at sentencing and in a post-
sentence motion, and included a Pa.R.A.P. 2119(f) statement in its brief.
However, we need not determine whether the Commonwealth has raised a
substantial question for review on the merits, as the Commonwealth’s cross-
appeal is now moot given our disposition of Appellant’s claims. Accordingly,
we dismiss the Commonwealth’s appeal.
Judgment of sentence vacated. Case remanded for a new trial.
Appellant’s Application for Leave to File Post-Submission Supplemental
Authority granted. The Commonwealth’s appeal dismissed. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2018
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