J-S26013-22
2022 PA Super 160
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OBADIAH MOSER :
:
Appellant : No. 426 MDA 2022
Appeal from the Judgment of Sentence Entered February 17, 2022,
in the Court of Common Pleas of Lycoming County,
Criminal Division at No(s): CP-41-CR-0001544-2020.
BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
OPINION BY KUNSELMAN, J.: FILED SEPTEMBER 19, 2022
Obadiah Moser appeals from the judgment of sentence of 80 to 160
years of incarceration entered following his conviction of numerous sexual
offenses against a minor victim, R.H. He challenges the denial of his motion
to suppress evidence and the discretionary aspects of his sentence. We affirm.
On November 11, 2020, police charged Moser based on R.H.’s report
that when R.H. was ages 12 to 14, Moser sexually abused him eleven times.
The case proceeded to a non-jury trial on October 20 and 21, 2021. During
trial, Moser orally moved to suppress two deleted “Notes” recovered from his
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* Former Justice specially assigned to the Superior Court.
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cellular phone.1 The trial court recessed, and a different judge heard the
motion.
The evidence relevant to the suppression issue is as follows. Police
discovered the Notes while executing two search warrants. In the first search,
police seized electronics from Moser’s house, including an iPhone. In the
second, Pennsylvania State Police digital forensic examiner Stefan Gerneth
seized digital information from the iPhone, including the Notes at issue. Both
Notes were created during the time of the reported abuse, and both had been
deleted by the time they were seized.2
The affidavit of probable cause in the second search warrant included
the following information about Moser’s use of technology:
[I interviewed R.H. on October 28, 2020.] RH told me during the
interview that he would communicate with MOSER via cell phone.
RH said that MOSER would constantly message him through
different social medias such as Snapchat, Facebook messenger.[3]
RH said that in these conversations, MOSER would talk to him
about hanging out and seeing what he doing. RH stated that if he
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1 The trial court permitted the late suppression motion in the interest of justice
because Moser received the “Notes” from the Commonwealth after the time
to file an omnibus motion had expired. See Pa.R.Crim.P. 579(A).
2 The Notes themselves were not included in the record on appeal. The
Commonwealth represented at the suppression hearing that Moser wrote
them in the second person and identified R.H. by name. N.T., Suppression,
10/20/21, at 22–23. The trial court found similarities between the language
of the Notes and Moser’s testimony. N.T., Trial, 10/21/21, at 122–123.
3 The affidavit of probable cause in the first search warrant provided that R.H.
said that Moser communicated with him “through Facebook messenger and
text.” Search warrant, 11/4/20, at 3.
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did not answer MOSER, MOSER would then message his other
family members looking for him.
On 11/05/2020, I interviewed Obadiah MOSER after he was
mirandized and waived his rights. MOSER told me that he did talk
to RH through different social medias. MOSER said that he first
talked to him on Facebook messenger but later deleted it.
MOSER told me that he then spoke to RH’[s] parents and was told
that these kids were now using Snapchat. MOSER told me that
he had downloaded [Snapchat] then and was communicating with
RH through that. MOSER said that he did talk to RH a lot through
messaging.
…
Based off my training and experience, I know that smartphone
apps can also be accessed through desktop computers and
laptops. I also know that it is common for people to save pictures
and conversations on separate devices.
Based on my previous child sex cases and child predator trainings,
I have learned that it is common for offenders to possess[]
photographs of their victims on their media devices. I also learned
it is common for them to communicate to the victims on different
devices other than their main communicative device.
At this time, I request a search warrant be issued for the items
listed in the “Items to be searched for” portion of the application
and all the data contained within the Iphone.
Search warrant, 11/24/20, at 2–3.
The second search warrant authorized a search of, inter alia, “[a]ll the
data within” Moser’s iPhone. Id. at Attachment A. The items to be searched
for and seized were:
Any and all calls/messages/conversations/photos/videos that
establish or provide details regarding the nature of the
relationship between [Moser] and the victim (RH) relating to
violations of Title 18: Section 3121 A(1) – Rape by forcible
Compulsion and Title 18: Section 6301A(1)(i) – corruption of a
minor and other related charges.
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Id.
At the suppression hearing, the Commonwealth called Mr. Gerneth, who
testified as an expert in computer forensics. He explained the function of the
Notes application: “In previous investigations that I performed, the Notes app
typically holds a message or some kind of information. There was an
investigation[,] specifically it was a suicide[,] and within that Note[s] section
was a message to the family detailing why she decided to commit suicide.”
N.T., Suppression, 10/20/21, at 11–12. He explained why he looked in the
Notes folder from the data extraction in this case:
Very commonly in our data extractions we will find messages or
messages to other people that are written out within the Notes
app, they just were not sent. It’s similar to writing a letter you
just don’t put in the post office. A lot of times people save
messages in the notes or create messages or write out their
thoughts of things they want to tell people and they just haven’t
done that. It’s just in the notes, they just use it as like a notebook
and write everything down to -- to maybe send it out in the future.
Id. at 14.
Moser argued that the second search warrant did not authorize the
seizure of the Notes because the Notes were not “messages.” Alternatively,
Moser reasoned that if the warrant permitted police to seize the Notes, then
it was overbroad because there was no probable cause to seize the Notes.
The Commonwealth responded that under a common-sense reading, the
warrant authorized police to seize the Notes because a “message” can mean
a “note or memo,” including an unsent draft. Additionally, the Commonwealth
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submitted that the warrant was not overbroad because the police could seize
only items that detailed Moser’s relationship with R.H.
The suppression court denied Moser’s motion to suppress. The court
first concluded that the search did not exceed the scope of the second search
warrant because Moser’s deleted Notes were “messages” or “conversations”:
[T]he courts look with great caution on warrants addressed to cell
phones. A recent case found that a general consent for electronic
devices did not constitute a consent for the search of the phone.
In this particular case, however, the Court cannot ignore the
purpose of the search warrant, nor the language. The purpose of
the search warrant was to locate data that detailed the nature of
the relationship between [Moser] and [R.H.]
The items to be seized included among others “messages
and conversations”. A message does not need to be
communicated; it can be left for a recipient, not then available.
Commonwealth is correct that a synonym for a message includes
a note or memo. A conversation constitutes the imparting of
information. A synonym includes, as indicated, imparting or
reporting. Furthermore, the Court finds that a communication
also includes what is known as intrapersonal communication or
self-talk.
Suppression Court Opinion, 10/27/21, at 2.4 The court also concluded that
Moser’s overbreadth challenge failed due to the warrant’s limiting language:
The court cannot find in this case that the warrant is overbroad
particularly because of the language set forth in the warrant that
qualifies or conditions it. Specifically, the items to be seized
include all items referenced that establish or provide details
regarding the nature of the relationship between [Moser and R.H.]
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4 The suppression court announced its ruling in open court and later entered
the above-cited opinion duplicating the announcement. The judge who
presided over the suppression hearing subsequently retired and did not draft
the Rule 1925(a) opinion.
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Id. at 3–4. Therefore, the suppression court denied Moser’s motion to
suppress the two Notes.
The trial resumed, and the Commonwealth presented the Notes as
evidence. The trial court then found Moser guilty of 48 offenses. On February
17, 2022, the court sentenced Moser to an aggregate term of 80 to 160 years
of incarceration, followed by three years of probation.5
Moser timely appealed.6 Moser and the trial court complied with
Pennsylvania Rule of Appellate Procedure 1925.
Moser raises two issues for our review:
I. Did the lower court err by denying [Moser’s] motion to
suppress “Notes Application” information from his cell phone
where the warrant authorized searching for conversations,
photos and videos or, in the alternative, was the warrant
overbroad?
II. Did the trial court abuse its discretion when imposing sentence
of 80 to 160 years [of] incarceration for counts of rape of and
involuntary deviate sexual intercourse with a child?
Moser’s Brief at 7 (capitalization omitted).7
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5 At Counts 1–3, rape of a child, and Counts 41–45, involuntary deviate sexual
intercourse, the court imposed mandatory minimum sentences of 10 to 20
years, to run consecutively. The Commonwealth had provided Moser notice
of the mandatory minimum sentences. N.T., 2/17/22, at 26.
6 Moser’s notice of appeal erroneously states that he is appealing from the
judgment of sentence and the verdict of guilt. The appeal lies only from the
judgment of sentence. Commonwealth v. O’Neill, 578 A.2d 1334, 1335
(Pa. Super. 1990).
7 Inexplicably, the Commonwealth did not file an appellate brief or letter
indicating that no brief would be filed.
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I. Suppression
Moser’s first issue mirrors his argument before the suppression court.
We follow these well-settled principles:
our standard of review for the denial of a suppression motion is
de novo and is limited to determining whether the suppression
court’s factual findings are supported by the record and whether
the legal conclusions drawn from those facts are correct. Our
scope of review is to consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the
suppression record as a whole. When the sole issue on appeal
relates to a suppression ruling, our review includes only the
suppression hearing record and excludes from consideration
evidence elicited at trial.
Commonwealth v. Green, 265 A.3d 541, 550–51 (Pa. 2021) (citations and
quotation marks omitted).
A. Scope of Warrant
Moser first contends that the Notes were outside the scope of what
police could search for and seize under the language of the second search
warrant.
Both the federal and Pennsylvania constitutions protect citizens from
unreasonable searches and seizures by requiring search warrants. U.S. Const.
amend. IV; Pa. Const. Art. I, § 8. The Fourth Amendment requires warrants
to be issued “particularly describing the place to be searched, and the person
or things to be seized.” Commonwealth v. Turpin, 216 A.3d 1055, 1063–
64 (Pa. 2019) (quoting Maryland v. Garrison,
480 U.S. 79, 84 (1987)).
Similarly, the Pennsylvania Constitution requires that a search warrant
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describe things to be seized “as nearly as may be” to prevent general,
exploratory searches and “the seizure of one thing under a warrant describing
another.” Commonwealth v. Waltson, 724 A.2d 289, 291 (Pa. 1998)
(quoting Commonwealth v. Grossman,
555 A.2d 896, 899 (Pa. 1989)). “As
to what is to be taken, nothing is left to the discretion of the officers executing
the warrant.” Commonwealth v. Matthews,
285 A.2d 510, 514 (Pa. 1971)
(emphasis deleted) (quoting Marron v. United States,
275 U.S. 192, 196
(1927)).
However, “search warrants should ‘be read in a common sense fashion
and should not be invalidated by hypertechnical interpretations. This may
mean, for instance, that when an exact description of a particular item is not
possible, a generic description will suffice.’” Green, 265 A.3d at 550 (quoting
Commonwealth v. Johnson, 240 A.3d 575, 584–85 (Pa. 2020) (OAJC)). “It
is permissible to seize things other than those described in the search warrant
if they have a reasonable relation to the purpose of the search.”
Commonwealth v. Gannon,
454 A.2d 561, 565 (Pa. Super. 1982) (quoting
Commonwealth ex rel. Stoner v. Myers,
185 A.2d 806, 808 (Pa. Super.
1962)). For example, police could seize a kitchen knife during a warranted
search for “one pocket knife.” Matthews,
285 A.2d at 514.
Here, the affidavit of probable cause in the second search warrant
described how Moser would contact R.H. through text messages and social
media including Facebook Messenger and Snapchat. Accordingly, the warrant
was issued to search all the data on Moser’s iPhone (and other devices) for
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“Any and all calls/messages/conversations/photos/videos” concerning his
relationship with R.H.
We conclude that the police could seize the Notes in their search under
the second warrant. The purpose of the search was to recover cellular phone
files that showed Moser’s relationship with R.H., described as calls, messages,
conversations, photos, and videos. The warrant was not limited to files within
certain applications, nor did it specify only finalized messages. As Mr. Gerneth
testified, people commonly use the Notes Application to compose messages.
Under these facts, the Notes had at least a reasonable relation to the purpose
of the search, and the suppression court did not err in denying Moser’s motion
to suppress based on the scope of the warrant.
B. Overbreadth
Moser next argues that if that the second warrant authorized police to
seize the Notes, then the warrant was overbroad.8
A warrant is unconstitutionally overbroad if there is an “unreasonable
discrepancy” between the items sought and the items for which there is
probable cause to search and seize. Green, 265 A.3d at 550 (quoting
Johnson, 240 A.3d at 584–85). The overbreadth doctrine “applies equally to
a search of digital space as it does for a physical search.” Id. at 553–54.
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8 To the extent that Moser separately argues a lack of particularity, we note
that he did not raise this constitutional challenge in his Rule 1925(b)
statement.
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For example, a warrant that authorizes the search and seizure of a flash
drive and “any contents contained therein,” without limitation for non-criminal
use of the flash drive would be overbroad. See Commonwealth v. Orie, 88
A.3d 983, 1008 (Pa. Super. 2014); see also United States v. Wecht,
619
F. Supp. 2d 213, 246 (W.D. Pa. 2019) (finding overbroad a warrant
authorizing seizure of all data on a computer). However, an overbreadth
challenge fails if a warrant for a search of an entire digital device has “self-
limiting language” that allows police to search only for evidence of the crime
for which there is probable cause. E.g., Green, 265 A.3d at 554–54; Orie,
88 A.3d at 1009–10 (finding that a warrant with limiting language for the
search of a computer cured any overbreadth defect in a prior warrant for the
seizure of the computer, distinguishing Wecht).
Here, the second warrant allowed police to search the entirety of the
data in Moser’s cellular phone. However, the warrant contained limiting
language allowing police to seize only certain files:
that establish or provide details regarding the nature of the
relationship between [Moser] and the victim (RH) relating to
violations of Title 18: Section 3121 A(1) – Rape by forcible
Compulsion and Title 18: Section 6301A(1)(i) – corruption of a
minor and other related charges.
Search warrant, 11/24/20, at Attachment A.
We agree with the suppression court that this limiting language is
sufficient to defeat Moser’s overbreadth challenge. The warrant did not give
the police discretion to search for any evidence of wrongdoing, just those files
that were related to the relationship between Moser and R.H. As concluded
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supra, the Notes were reasonably related to the purpose of the search. The
warrant was not overbroad in permitting police to search the notes/memos
folder for this evidence. Therefore, the suppression court did not err in
denying Moser’s motion to suppress based on the breadth of the warrant.
II. Sentencing Discretion
In his second issue, Moser challenges the discretionary aspects of his
sentence, specifically the order that all eight mandatory minimum sentences
run consecutively.
Challenges to the discretionary aspects of sentence are not
appealable as of right. Commonwealth v. Leatherby, 116 A.3d
73, 83 (Pa. Super. 2015). Rather, an appellant challenging the
sentencing court’s discretion must invoke this Court’s jurisdiction
by (1) filing a timely notice of appeal; (2) properly preserving the
issue at sentencing or in a motion to reconsider and modify the
sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a
separate section of the brief setting forth a concise statement of
the reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence; and (4) presenting a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b), or
sentencing norms. Id. An appellant must satisfy all four
requirements. Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.
Super. 2013).
Commonwealth v. Miller, 275 A.3d 530, 534 (Pa. Super. 2022).
Here, Moser filed a timely notice of appeal and included a Rule 2119(f)
statement in his brief. However, he has failed to preserve his challenge by
objecting at sentencing or by filing a motion to reconsider and modify his
sentence. Therefore, he has not properly invoked this Court’s jurisdiction to
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review his claim. Commonwealth v. Padilla-Vargas, 204 A.3d 971, 975–
76 (Pa. Super. 2019). We cannot address the merits of this issue.9
III. Conclusion
The suppression court did not err in denying Moser’s motion to suppress.
Moser waived his challenge to the discretionary aspects of his sentence.
Therefore, we will affirm Moser’s judgment of sentence.
Judgment of sentence is affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/19/2022
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9 Even if we had jurisdiction to rule on this claim, it would have no merit.
See
Commonwealth v. Taylor, 277 A.3d 577, 595 (Pa. Super. 2022) (noting
that a defendant is not entitled to a “volume discount” for multiple offenses).
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