Com. v. Sperber, T.

J-A18016-17
2017 PA Super 391COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
THOMAS EDWARD SPERBER, JR.
Appellant No. 707 WDA 2016
Appeal from the Judgment of Sentence April 14, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0002947-2015
BEFORE: BOWES, J., LAZARUS, J., and OTT, J.
OPINION BY LAZARUS, J.: FILED DECEMBER 12, 2017
Thomas Edward Sperber, Jr., appeals from the judgment of sentence
entered in the Court of Common Pleas of Allegheny County. Sperber was
arrested and charged in March 2015 with eleven counts 1 of possession of child
pornography2 and criminal use of a communication facility.3 The charges were
filed after Sperber’s parole officer, from a prior case, found images of minor
females on his smartphone. After careful review, we affirm.
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1 Counts 1-8 were graded as second-degree felonies and counts 9-11 were
graded as third-degree felonies.
2 18 Pa.C.S. § 6312(d).
3 18 Pa.C.S. § 7512(a).
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In an unrelated case, Sperber pled guilty in September 2001 (“prior
case”/”prior sex offenses”) to one count each of sexual abuse of children
(relating to child pornography), criminal use of a communication facility,
indecent exposure; two counts each of rape, sexual assault and indecent
assault; and three counts each of involuntary deviate sexual intercourse
(victim less than 16) and statutory sexual assault. On January 17, 2002, the
court sentenced Sperber to an aggregate term of eight to twenty years’
imprisonment; he was also ordered to comply with the lifetime registration
requirements pursuant to Megan’s Law II, 42 Pa.C.S. §§ 9795.1(b) and
9795.2. In February 2014, the court paroled Sperber on the prior sex
offenses; he was paroled to his approved home where he was supervised by
Pennsylvania State Parole Board Agent Thomas Wolfe.4
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4 Sperber filed a direct appeal from his judgment of sentence in the prior case,
claiming that the trial court erred in applying Megan’s Law II where the
punishment violated the ex post facto clause of the United States Constitution.
See Commonwealth v. Sperber, 813 A.2d 909 (unpublished memorandum
decision) (Pa. Super. filed September 11, 2002). Our Court affirmed his
judgment of sentence, relying on Commonwealth v. Fleming, 801 A.2d
1234 (Pa. Super. 2002), which held that the registration requirement was not
punishment, and, therefore, could not constitute a violation of the ex post
facto clause of the United States Constitution. However, the Supreme Court
vacated and remanded the case for resentencing based upon the holding of
Commonwealth v. Williams, 832 A.2d 962 (Pa. 2003), which determined
that the provision of Megan’s Law II which allowed the Commonwealth to
incarcerate a sexually violent predator who did not comply with the
notification, registration, and counseling provisions was unconstitutional
because it was manifestly in excess of what was needed to ensure compliance.
Commonwealth v. Sperber, 849 A.2d 1134 (unpublished decision) (Pa. filed
May 25, 2004).
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On August 21, 2015, Sperber filed a motion to suppress in the instant
case claiming that his initial detention and the subsequent search of his
person, vehicle, and smart phone were illegal because the parole agents did
not have reasonable suspicion to believe that they would discover evidence of
a parole violation in his prior case. Sperber also argued that he never
consented to the search of his vehicle or smart phone and that any alleged
consent was the product of an unlawful investigatory detention.
At a suppression hearing, held on September 1, 2015, Agent Wolfe
testified that he had been supervising sex offenders exclusively for seven
years and that as conditions of his parole, Sperber expressly consented to
warrantless searches of his person, property, and residence and
acknowledged that any items in his possession that constituted a violation of
his parole would be subject to seizure and used as evidence. N.T. Suppression
Hearing, 9/1/15, at 3-4, 6. As a special condition of his parole in the prior
case, Sperber expressly consented to parole staff having access to any
computer or multimedia device in his possession, including cell phones, and
also permitted parole supervision staff to search all programs and records
maintained on any such devices. Id. at 7. Finally, as another condition of
his probation, Sperber was prohibited from possessing a cell phone with
internet capabilities.5 Id. at 8.
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5 It does not appear, however, that Sperber was precluded from accessing the
internet on a computer; thus, the condition was not a complete ban on internet
access. See infra n.8.
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Wolfe testified that on August 27, 2014, his office received a call from
the Pennsylvania State Police Megan’s Law Division (the Division) that it had
received an anonymous tip that Sperber had access to social networking sites
on a smart phone. The Division gave Wolfe two associated internet user
names connected to the social media sites. Id. at 9. Wolfe tried to ascertain
the identity of the user names on several sites, but was unsuccessful because
they were password-encrypted. Prior to receiving the anonymous tip, several
sex offenders, who were in Sperber’s sex offender treatment group and were
being supervised by Agent Wolfe, had also informed Wolfe that Sperber
possessed a smart phone. Id.
On the same day Wolfe received the anonymous tip from the Division,
Sperber reported to the Pennsylvania State Parole Pittsburgh Office for a
regularly scheduled visit with Wolfe. When he arrived, Wolfe questioned
Sperber about the anonymous tip and reports about him possessing a smart
phone and asked him to empty his pockets. Sperber did so, producing car
keys and a regular (non-smart) cell phone. Wolfe asked Sperber if he was
hiding anything in his car, to which he replied “no.” Id. at 10. Wolfe then
asked Sperber for permission to search his car, to which Sperber agreed. Id.
Two other parole agents opened Sperber’s car and confiscated an Android cell
phone with internet capabilities. Id. at 11. Sperber’s cell phone was
password-protected; Sperber gave Wolfe the password at his request. Id. at
12-13. Wolfe entered the password which unlocked the phone, revealing
images of young minor females. At that point, Wolfe filed a confiscation report
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and turned the phone over to the Attorney General’s Office for further
investigation. Id. at 13.6
After the parties filed briefs on the matter, the trial court denied
Sperber’s suppression motion on October 19, 2015. Sperber proceeded to a
non-jury trial before the Honorable Donna Jo McDaniel. Following trial,
Sperber was found guilty of counts 2-12; count 1 was withdrawn. On April
14, 2016, the court sentenced Sperber on the pornography charges to five
consecutive 5-10 year terms of incarceration, for an aggregate sentence of
25-50 years’ imprisonment. No further penalty was imposed on the
communication charge. Sperber filed no post-sentence motions.
Sperber filed a timely notice of appeal and court-ordered Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. He presents
the following issue for our consideration:
Did the trial court err by denying Mr. Sperber’s motion to suppress
evidence where the initial detention of Mr. Sperber along with the
subsequent searches of his vehicle and smart phone, because they
were not supported by reasonable suspicion, were illegal and
conducted in violation of his rights under the Fourth and
Fourteenth Amendments to the United States Constitution and
Article One, Section Eight of the Pennsylvania Constitution?
Appellant’s Brief, at 5.
In an appeal from the denial of a motion to suppress, an appellate
court’s role is to determine whether the record supports the
suppression court’s factual findings and the legitimacy of the
inferences and legal conclusions drawn from those findings. In
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6 In the prior case, Sperber was recommitted to SCI Pittsburgh for “technical
violations” for possessing a cellphone with internet capabilities. Motion to
Suppress, 8/21/16, at ¶ h.
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making that determination, the appellate court may consider only
the evidence of the prosecution’s witnesses and so much of the
defense as, fairly read in the context of the record as a whole,
remains uncontradicted. When the factual findings of the
suppression court are supported by the evidence, the appellate
court may reverse only if there is an error in the legal conclusions
drawn from those factual findings.
Commonwealth v. Griffin, 24 A.3d 1037, 1041 (Pa. Super. 2011) (quotation
omitted).
It is well established that individuals under parole supervision have
limited search and seizure rights. Commonwealth v. Chambers, 55 A.3d
1208 (Pa. Super. 2012). “In exchange for early release from prison, the
parolee cedes away certain constitutional protections enjoyed by the populace
in general.” Commonwealth v. Edwards, 874 A.2d 1192, 1197 (Pa. Super.
2005) (citation omitted). Parolees agree to warrantless searches based only
on reasonable suspicion. Commonwealth v. Colon, 31 A.3d 309 (Pa. Super.
2011). State parole agents are statutorily permitted to perform a personal
search of an offender or his or her personal property if there is reasonable
suspicion to believe “that the offender possesses contraband or other evidence
of violations of conditions of supervision” or “that the real or other property in
the possession of or under the control of the offender contains contraband or
other evidence of violations of the conditions of supervision.” 61 Pa.C.S. §
6153(d)(1)(i), (2).
While the determination of whether reasonable suspicion exists is to be
considered in light of the totality of the circumstances, Commonwealth v.
Shabazz, 18 A.3d 1217 (Pa. Super. 2011), under section 6153(d)(6),
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[t]he existence of reasonable suspicion to search shall be
determined in accordance with constitutional search and seizure
provisions as applied by judicial decision. In accordance with such
case law, the following factors, where applicable, may be taken
into account:
(i) The observations of agents.
(ii) Information provided by others.
(iii) The activities of the offender.
(iv) Information provided by the offender.
(v) The experience of agents with the offender.
(vi) The experience of agents in similar circumstances.
(vii) The prior criminal and supervisory history of the
offender.
(viii) The need to verify compliance with the conditions of
supervision.
61 Pa.C.S. § 6153(d)(6).
We find that, in light of the totality of the circumstances, the parole
agents had reasonable suspicion to conduct the warrantless search of
Sperber’s person, car and smart phone. First, the police corroborated the
anonymous tip with reports from several other parolees who were members
of Sperber’s sex offender group whom Agent Wolfe also supervised. These
group members had informed Wolfe “through the months,” prior to the tip,
that Sperber possessed a smart phone. N.T Suppression Hearing, 9/1/15, at
9-10. In addition, Wolfe was familiar with Sperber’s past history of viewing
child pornography. Next, the scope of the search was within Wolfe’s duty as
a parole officer where conditions of Sperber’s parole provided for warrantless
searches of his person and property, and permitted parole agents access to
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any cell phone or multimedia device he possessed. Finally, Wolfe testified that
Sperber expressly consented to the search of his person and car. 7
Accordingly, we find no merit to Sperber’s suppression claim on appeal; the
trial court’s factual findings are supported in the record and its legal
conclusions are correct. Griffin, supra.8
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7 We also find that there is no evidence in the record to suggest that Sperber
was coerced to agree to the searches or that the parole visitation rose to the
level of a custodial interrogation requiring more constitutional protections. Cf.
Commonwealth v. Cooley, 118 A.3d 370 (Pa. 2014) (where parolee was
restrained upon arrival at parole office, was accused of crimes for which he
was not on parole, and no “interview” or dialogue related to conditions of
parole or parole violations took place, parolee subject to custodial
interrogation; failure to administer Miranda warnings violated Fifth
Amendment rights resulting in vacation of conviction).
8 We note that recently, in Packingham v. North Carolina, 137 S. Ct. 1730(2017), the United States Supreme Court deemed unconstitutional a North
Carolina statute that makes it a felony for a registered sex offender to gain
access to a number of websites, including commonplace social media
websites, “where the sex offender knows that the site permits minor children
to become members or to create or maintain personal Web pages.” Id. at
1733. Recognizing that it was a case of first impression about “the relationship
between the First Amendment and the modern Internet,” the Court concluded
that “[b]y prohibiting sex offenders from using those websites, North Carolina
with one broad stroke bars access to what for many are the principal sources
for knowing current events, checking ads for employment, speaking and
listening in the modern public square, and otherwise exploring the vast realms
of human thought and knowledge.” Id. at 1737.
While Packingham may appear to be relevant to the case at hand, we
note that the Packingham Court stated, “this opinion should not be
interpreted as barring a State from enacting more specific laws than the one
at issue.” Id. However, because the judgment of sentence from which
Sperber appeals is not the one that imposed the parole condition, it is not an
appropriate challenge in this appeal. Rather, because the condition is
attached to his 2002 sentence, it would be properly raised in a Post-Conviction
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Judgment of sentence affirmed.
OTT, J., joins the opinion.
BOWES, J., files a concurring opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2017
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Relief Act (PCRA) petition, filed in that case, raising the proper PCRA timeliness
exception. Finally, even if we were to find the claim relevant to this appeal,
it would be waived. “[I]it is well-settled that in order for a new law to apply
retroactively to a case pending on direct appeal, the issue had to be preserved
in the trial court and at all subsequent stages of the adjudication up to and
including the direct appeal.” Commonwealth v. Smith, 17 A.3d 873, 893-
94 (Pa. 2011). Here, Sperber never raised this issue at sentencing, in a post-
sentence motion or even in this direct appeal. Additionally, the issue involves
the discretionary aspect of Sperber’s sentence which he failed to preserve at
sentencing or in a post-sentence motion. See Commonwealth v. Yockey,
158 A.3d 1246 (Pa. Super. 2017) (where defendant convicted of corruption of
minors and indecent assault, claim that sentence prohibiting defendant from
having access to internet was illegal was waived where defendant did not
challenge it at sentencing or in post-sentence motion); see also Pa.R.Crim.P.
720; Pa.R.A.P. 302(a).
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