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HomeMy WebLinkAboutCP-21-CR-0003463-2010 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : : SHANE A. BURKETT : CP-21-CR-3463-2010 IN RE: OMNIBUS PRETRIAL MOTION OPINION AND ORDER OF COURT Masland, J., July 7, 2011:-- Before the court is the omnibus pretrial motion filed by Defendant, Shane A. Burkett. For the following reasons, the motion is denied in part and granted in part. I. Facts Defendant faces charges related to the possession of child pornography. The alleged child pornography was discovered on Defendant's home computer during a police investigation looking for computers sharing such material over peer to peer internet sharing programs. The investigation indicated that the IP address associated with Defendant's physical address was offering to share apparent child pornography. After receiving a warrant, police searched Defendant's residence and seized computers and related electronics that were suspected of storing child pornography. During this search, police also discovered illegal steroids. Following the search, two criminal complaints were filed against Defendant: one for the illegal steroids and one for the alleged child pornography. CP-21-CR-3463-2010 At the preliminary hearing, both complaints were addressed in the same proceeding due to the Magisterial District Judge's preference. There was no Commonwealth motion to consolidate the charges. After the hearing, the illegal steroid charges were bound over for trial and the child pornography charges were dismissed. The child pornography charges were not immediately refiled. Instead, six months later, Defendant pled guilty to the steroid charges and received a probationary sentence. Roughly six weeks later, the Commonwealth moved to refile the child pornography charges and that motion was granted. The circumstances of Defendant's plea are disputed. Defendant contends that he understood the plea to be in satisfaction of all charges against him, including those related to child pornography. The Commonwealth disagrees and maintains the plea agreement related exclusively to the illegal steroids charges. After a hearing, we agree with the Commonwealth and find that Defendant's plea agreement was limited to the illegal steroids charges and had no effect on the subsequently refiled child pornography charges. However, we also agree with Defendant that the Commonwealth must provide his computer forensic expert with a duplicate copy of any digital media seized from his residence allegedly containing child pornography, subject to a strict protective order. II. Discussion Defendant raises three issues in his omnibus pretrial motion: (1) the instant prosecution is barred by the former prosecution and sentence imposed pursuant to Defendant's agreement to plead as charged to possession of illegal -2- CP-21-CR-3463-2010 steroids; (2) the Commonwealth's nine month delay in refiling the child pornography charges resulted in undue and impermissible prejudice to Defendant's ability to defendant against those charges; and (3) the Commonwealth most provide Defendant's expert a copy of the computer hard drive allegedly containing child pornography subject to an appropriate protective order pursuant to Commonwealth v. Michaels, 59 Cumb. 260 (2010). A. Former Prosecution Defendant contends the Commonwealth made a calculated decision to delay prosecuting him for the child pornography until after he had been sentenced for the steroid charges thereby amounting to a "successive prosecution" violation. We disagree. Relevant here, a prosecution is barred by the former prosecution resulting in a conviction of a different offense where the subsequent prosecution is for: (i) any offense of which the defendant could have been convicted on the first prosecution; (ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and occurred within the same judicial district as the former prosecution unless the court ordered a separate trial of the charge of such offense; or (iii) the same conduct, unless: (A) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of -3- CP-21-CR-3463-2010 such offenses is intended to prevent a substantially different harm or evil; or (B) the second offense was not consummated when the former trial began. 18 Pa. C.S. §110. (emphasis added). The instant prosecution is not barred by Defendant's prior prosecution for illegal steroids possession. First, at the time of the steroids prosecution, the child pornography charges had been dismissed and had yet to be refiled. Accordingly, there were no child pornography charges pending against Defendant at the time of his steroids guilty plea, so those charges did not arise from an “offense of which the defendant could have been convicted on the first prosecution ...." 18 Pa. C.S. §110(1)(i). Second, even to the extent that the two sets of charges can be considered to be based on the same conduct, each offense requires the proof of several facts not required by the other and the two offenses are clearly designed to prevent substantially different harms or evils. 18 Pa. C.S. §110(1)(iii)(A). Here, the only fact arguably shared by the two sets of offenses is the possessory element. In all other respects, the offenses require proof of different facts. Finally, Defendant claims the Commonwealth misled him regarding the scope of his guilty plea to the steroids charges. On this additional basis he claims the instant prosecution is barred as an impermissible successive prosecution. At the hearing on this motion, the Commonwealth provided the -4- CP-21-CR-3463-2010 testimony of Senior Assistant District Attorney Peck who had been responsible for Defendant's prosecution and guilty plea. She credibly testified that Defendant's guilty plea agreement was limited to the steroids charges and was never made in consideration for the abandonment of the child pornography charges. The court finds this testimony credible and rejects Defendant's contrary assertions. For all these reasons, we conclude that the instant prosecution is not barred by Defendant's previous prosecution and conviction for illegal steroids possession. B. Prejudicial Delay in Refiling Charges Defendant argues the Commonwealth's nine-month delay in refiling the instant charges after their initial dismissal unduly prejudices his ability to defend against the charges and they should therefore be dismissed. We disagree. Defendant's argument here is similar to those already addressed in the previous section of this opinion. Again, he argues that he relied on alleged representations by the Commonwealth that his guilty plea to the steroids charges would dispose of any potential child pornography charges. Further, he claims that SADA Peck asserted at the time the pornography charges were dismissed that she would “immediately refile” the charges. Supposedly, the failure to refile the charges immediately renders them stale. As before, we rely on SADA Peck's credible testimony that no agreement to dispose of the pornography charges existed. Additionally, the charges were undoubtedly filed before the expiration of the applicable statute of limitations and -5- CP-21-CR-3463-2010 Defendant has failed to identify any other facts to support his argument of unfair prejudice. See 42 Pa. C.S. §5552(b.1) (establishing 12-year limitations period for major sexual offenses). With respect to the failure to refile the charges immediately, we find SADA Peck’s testimony, supported by the testimony and police report of Detective Sergeant Bock to be eminently credible. In short, upon dismissal of the charges, SADA Peck immediately stated her intention to refile and determined that a full forensic review of the evidence would be required before doing so. After a charge of this nature is dismissed, it is not unreasonable to proceed meticulously with the forensic work and subsequent consultations. Even if SADA Peck had stated “I will immediately refile these charges,” that would not have been a binding statement on which the Defendant or counsel could or should rely. The fact remains the charges were refiled within the applicable statute of limitations. Accordingly, we reject Defendant's argument and conclude the Commonwealth may proceed with the instant prosecution. C. Access to Computer Data Finally, Defendant seeks access to a duplicate copy of the computer data seized from his residence and now in the Commonwealth's possession allegedly containing child pornography for forensic analysis. The Commonwealth opposes this request relying on a federal law prohibiting such a transfer. For the following reasons, we reject the Commonwealth's position and grant Defendant's request subject to a strict protective order. This court was presented with identical facts in the case of -6- CP-21-CR-3463-2010 Commonwealth v. Michaels, 59 Cumb. 260 (2010), motion for permission to appeal interlocutory granted, 106 MDM 2010, appeal discontinued by Commonwealth, 220 MDA 2011. There we concluded that the Federal rule preventing duplication of alleged child pornography in the context of a criminal prosecution to not apply to the Commonwealth and concluded the Pennsylvania Rules of Criminal Procedure permitted such duplication subject to a strict protective order. We find that case indistinguishable from the instant matter and accordingly come to the same conclusion here. See Appendix for Protective Order. III. Conclusion For the aforementioned reasons, the court reaches the following conclusions: (1) Defendant's prosecution for the instant child pornography related charges is not precluded on the basis of a "successive prosecution" violation; (2) Defendant was not unduly prejudiced by the Commonwealth's nine- month delay in refiling the charges against him; (3) Defendant is entitled to have his forensic expert provided with a duplicate copy of any computer media seized from his residence that allegedly contains child pornography subject to the protective order appended to this opinion and order of court. ORDER OF COURT AND NOW, this day of July, 2011, (1) Defendant's prosecution for the instant child pornography related charges is not precluded on the basis of a "successive prosecution" violation; (2) Defendant was not unduly prejudiced by -7- CP-21-CR-3463-2010 the Commonwealth's nine-month delay in refiling the charges against him; (3) Defendant is entitled to have his forensic expert provided with a duplicate copy of any computer media seized from his residence that allegedly contains child pornography subject to the protective order appended to this opinion and order of court. By the Court, Albert H. Masland, J. Christin J. Mehrtens-Carlin, Esquire Assistant District Attorney Roger R. Laguna, Jr., Esquire For Defendant :saa -8- CP-21-CR-3463-2010 Appendix – Protective Order 1. The Commonwealth shall provide Defendant's forensic expert, , a duplicate copy of the computer hard drive seized from Defendant allegedly containing child pornography, necessarily including any and all actual or alleged child pornography or contraband contained thereon. The details of the delivery from the Commonwealth to shall be arranged by counsel. shall maintain the duplicate hard drive as follows: a. The duplicate hard drive shall be maintained by in accordance with this Order, and shall be used by him solely and exclusively in connection with this case. b. The duplicate hard drive shall be maintained by in a locked file or cabinet at all times, except while being actively utilized for forensic analysis as provided for in this Order. c. A copy of this Order shall be kept with the duplicate hard drive at all times. d. The duplicate hard drive shall be accessed and viewed only by or anyone working with him on this case, including defense counsel. e. The duplicate hard drive and all material contained therein (in particular, any graphic image containing actual or alleged child pornography) shall not be copied, reproduced, distributed, disseminated, electronically stored, uploaded, or downloaded or -9- CP-21-CR-3463-2010 used for any purpose other than the defense of this action. f. Defendant himself shall not be permitted to access or view any graphic image file containing actual or alleged child pornography on the duplicate hard drive, without petition and prior order of this Court. g. The computer into which the duplicate hard drive is connected for access and operation shall be a dedicated, non-networked computer and the computer and duplicate hard drive shall be locked and secured when not in use. h. The computer to which the duplicate hard drive is connected may be connected to a printer only under the following conditions: that any printer utilized is a local printer, that the printer may be connected only when and as necessary to print non-graphic image files, and that shall be personally present at all times a printer is connected. i. Defense counsel and shall execute the acknowledgement and acceptance of the terms of this order as set forth below. 2. Within 30 days of termination of this matter shall return (or cause the return of) the duplicate hard drive to an appropriate representative of the Commonwealth. shall ensure that the materials contained on the duplicate hard drive are completely and irretrievably deleted -10- CP-21-CR-3463-2010 from the computer on which the materials were viewed. Upon the return of the duplicate hard drive, shall file a brief report to the Court specifying that the terms of this Order have been complied with, reporting the return of the duplicate hard drive, and certifying the deletion of the material from the computer on which they were viewed. The undersigned hereby acknowledges that they will comply with the terms of the protective order. Roger R. Laguna, Jr., Esquire (Date) (Date) -11- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : : SHANE A. BURKETT : CP-21-CR-3463-2010 IN RE: OMNIBUS PRETRIAL MOTION ORDER OF COURT AND NOW, this day of July, 2011, (1) Defendant's prosecution for the instant child pornography related charges is not precluded on the basis of a "successive prosecution" violation; (2) Defendant was not unduly prejudiced by the Commonwealth's nine-month delay in refiling the charges against him; (3) Defendant is entitled to have his forensic expert provided with a duplicate copy of any computer media seized from his residence that allegedly contains child pornography subject to the protective order appended to this opinion and order of court. By the Court, Albert H. Masland, J. Christin J. Mehrtens-Carlin, Esquire Assistant District Attorney Roger R. Laguna, Jr., Esquire For Defendant :saa