J-A24003-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CRAIG S. HARTMAN : : Appellant : No. 550 EDA 2023
Appeal from the Judgment of Sentence Entered January 17, 2023 In the Court of Common Pleas of Bucks County Criminal Division at No: CP-09-CR-0001392-2021
BEFORE: STABILE, J., DUBOW, J., and SULLIVAN, J.
MEMORANDUM BY STABILE, J.: FILED APRIL 23, 2024
Craig S. Hartman, Appellant, appeals the judgment of sentence entered
by the Court of Common Pleas of Bucks County (trial court). Following a jury
trial, Appellant was found guilty of sex offenses against two minor children.
He was sentenced to an aggregate prison term of 23 to 46 years, and
designated as a Sexually Violent Predator. In this appeal, Appellant contends
that the trial court erred in admitting photos downloaded from his cellular
phone because the warrant for the phone’s search was constitutionally
overbroad, and the evidence prejudiced him at trial. He also argues that the
trial court abused its discretion by imposing a de facto life sentence, and by
not properly considering individualized sentencing factors. Finding that
Appellant is entitled to no relief on either claim, we affirm. J-A24003-23
The two minor victims in this case were L.H. (age 9) and K.R. (age 10).
Appellant met L.H. first through the child’s grandmother, Marge Heckman,
who was the child’s guardian. Heckman worked at a diner where Appellant
was a long-time customer, and L.H. would be brought to the diner on
occasions when a babysitter could not be found. Appellant often spent time
with L.H. during Heckman’s shifts. Appellant later met K.R. through L.H., as
the two children had become good friends at school.
In the summer of 2020, Appellant took both L.H. and K.R. on a variety
of outings, including trips to the mall, the park, and fast-food restaurants. He
also bought them clothes, took them to get pedicures, and brought them to
the home of his sister, Dawn Borusky, so that the girls could use the swimming
pool at the residence.
On July 23, 2020, after K.R. had returned home from Borusky’s house,
she told her mother that Appellant had put his fingers in her vagina and anus,
causing her to bleed later that day. This incident had occurred in Borusky’s
swimming pool while Appellant played a game with the two girls in which they
would hide his wristwatch; Appellant would attempt to find the watch by
fondling them under their bathing suits and penetrating the girls digitally.
K.R.’s mother reported what she was told to the police, and K.R. was
taken to a nearby hospital to be physically examined.1 About two weeks later,
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1 The physical examination of K.R. and the testing of the clothing she wore
that day yielded no evidence of sexual abuse.
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the child spoke with a forensic interviewer, Allison Rose, to further recount
her experiences with Appellant. K.R. told Rose that, in addition to the incident
at the pool, Appellant had taken her and L.H. to his apartment and raped
them. The children were instructed by Appellant not to tell anyone about what
he had done.
Rose conducted a forensic interview with L.H. a few days later, and the
child denied that Appellant had abused her in any way. But at a second
interview with Rose about four months after that, L.H. echoed K.R.’s account.
L.H. claimed that Appellant had on numerous occasions penetrated her with
his fingers.
Detective Stephen Reeves was assigned to the case soon after the
children came forward, and on October 22, 2020, he contacted Appellant to
ask if he would appear at the police station to answer questions. Appellant
agreed, and on that same day he spoke to Detective Reeves for about two
hours, gave a statement, and took a polygraph test.
In his recorded interview with Reeves, Appellant denied having had any
sexual contact with either L.H. or K.R. He admitted to playing games with the
children in his sister’s pool, but insisted that it was not sexual in nature.
Moreover, Appellant admitted that he would occasionally rub L.H.’s shoulders,
arms, feet, and knees. He would also send text messages to L.H. every day,
and he stated that he loved her.
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Just prior to the polygraph test, Detective Reeves asked Appellant for
his cellular phone, and Appellant initially agreed, giving both verbal and
written consent. Detective Reeves had possession of the phone for about an
hour, during which time he found a file in the phone called “L.H.,” containing
196 photos of the child. None of the photos were pornographic or sexually
explicit in nature, but a few of them were taken from behind the child, at
angles where her buttocks was prominently displayed. In many of the photos,
L.H. was wearing a swimsuit.
After Appellant completed the polygraph test, he asked for the return of
his phone. Detective Reeves instead kept the phone in his possession while
he applied for, and was granted, a warrant to search the device. The officer’s
affidavit of probable cause enumerated the items to be searched in such a
way as to avoid any potential limitations on the material that could be
recovered. The “searched for” items included “any and all” documents, files,
call history, email activity, photos, videos, images, and identifying
information. A search warrant was granted, and it contained an identical
description of the items to be searched for. Police relied upon the warrant to
download the phone’s contents, including all the photos saved in the “L.H.”
folder.
Charges were filed on May 6, 2021, and Appellant moved to exclude the
photos from the evidence at trial. He argued in his omnibus pre-trial motion
that the search warrant was invalid because it “did not identify specifically the
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information to be seized,” and “did not contain the requisite probable cause
to conduct the search within the four corners of the written affidavit attached
to the search warrant.” Appellate did not elaborate on the argument at the
hearing on the motion. See Suppression Hearing Transcript, 6/30/2022, at
p. 24.
The trial court denied Appellant’s suppression motion, finding that
Appellant consented to the search of the phone, and that regardless, the
search was supported by probable cause. See Trial Court’s Findings of Fact
and Conclusions of Law, 7/6/2022, at 4-5; see also Trial Court 1925(a)
Opinion, 4/21/2023, at 9-11.2 Accordingly, the Commonwealth was permitted
to introduce the photos, and 121 of them were shown to the jury. The
Commonwealth relied on the photos in closing to argue that Appellant’s
possession of them established that he had sexually objectified L.H., rebutting
his claim that the relationship was purely platonic. See N.T. Trial, 9/15/2022,
at 47-48.
2 The trial court indicated in its 1925(a) opinion that Appellant’s contention is
without merit in part because the photos introduced at trial were retrieved by Detective Reeves during the one-hour window in which Appellant had given consent. See Trial Court 1925(a) Opinion, 4/21/2023, at 9. However, Detective Reeves testified at the suppression hearing that no photos were downloaded from the phone until after Appellant withdrew his consent, and a warrant for the phone’s search had been granted. See Suppression Hearing Transcript, 6/30/2022, at 40. Consistent with that testimony, the Commonwealth now asserts in its brief that the photos of L.H. admitted into evidence were downloaded from Appellant’s phone pursuant to the search warrant. See Appellee’s Brief, at 11.
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At the conclusion of the trial, Appellant was found guilty of the following
offenses: one count of rape of a child (18 Pa.C.S.A. § 3121(c)); two counts
of aggravated indecent assault of a child less than 13 years of age (18
Pa.C.S.A. § 3125(b)); two counts of indecent assault of a child less than 13
years of age (18 Pa.C.S.A. § 3126(a)(7)); two counts of indecent exposure
(18 Pa.C.S.A. § 3127(a)); two counts of corruption of minors (18 Pa.C.S.A. §
6301(a)(1)(ii)); and two counts of unlawful contact with a minor (18 Pa.C.S.A.
§ 6318(a)(1)).
As to each of the two counts of aggravated indecent assault of a child
less than 13 years of age, Appellant received consecutive 10-year minimum
mandatory sentences, both with an upward range of 20 years. These terms
were imposed in accordance with 42 Pa.C.S.A. § 9718(a)(3), which mandates
that a person convicted of that offense receive a sentence of not less than 10
years. As to one of the two counts of unlawful contact with a minor, Appellant
received a term of three to six years, also to be served consecutively to the
other counts. The record reflects that Appellant was not sentenced on the
remaining counts, resulting in an aggregate prison term of 23 to 46 years. He
was also required to register as a Sexually Violent Predator.
The trial court gave its rationale for the sentence first by discussing the
effect of Appellant’s crimes on the two minor victims, their families, and the
community at large. See Sentencing Hearing Transcript, 1/17/2023, at 26.
The trial court then recounted the evidence of Appellant’s manipulative
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behavior, including his friendship with L.H.’s guardian, and frequent activities
with both minor victims over an extended period of time. See id., at 26-29.
The trial court also responded to the argument made by defense counsel
that the sentence sought by the Commonwealth would exceed Appellant’s
lifespan, as he would not be parole-eligible until the age of 92. While agreeing
that Appellant might not live long enough to qualify for parole, the trial court
balanced that consideration against the possibility of recidivism even for a
parolee of that advanced age. See id., at 29-30. As an example, the trial
court referred to a 93-year-old repeat sex offender in an unrelated case. See
id.
Appellant filed a post-sentence motion seeking reconsideration of his
sentence, and the motion was denied. He then timely filed a notice of appeal,
and in his brief, he raises the following two issues for our consideration:
1. Did the trial court err in denying the motion to suppress photographs found on Appellant's phone where the warrant's description of the items to be searched for and seized was unconstitutionally overbroad, an error that was not harmless?
2. Did the trial court err and manifestly abuse its sentencing discretion when it sentenced a 67 year old with no prior criminal history to a minimum term of 23 years imprisonment as it did not conduct an individualized sentence determination, utilized an unreliable sentencing factor, and imposed what is in effect a sentence of life imprisonment?
Appellant’s Brief, at 6.
The Commonwealth responded in its brief that Appellant’s overbreadth
challenge is waived, that the warrant was not overbroad, and that any defect
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concerning the warrant’s scope was harmless error. As to Appellant’ second
issue, the Commonwealth asserted that it is not reviewable here because it
involves a discretionary aspect of sentencing which does not pose a
“substantial question.” The Commonwealth argued in the alternative that the
claim lacks substantive merit because the trial court considered all relevant
sentencing factors and properly exercised its discretion when imposing a term
within the maximum range permitted by the Sentencing Code.
We first consider whether the trial court erred in denying Appellant’s
motion to suppress the photos of L.H. that were downloaded from his cell
phone. On review of an order denying a suppression motion, this Court “is
limited to determining whether the factual findings are supported by the
record and whether the legal conclusions drawn from those facts are correct.”
Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017). The trial
court’s factual findings are binding on this Court if they are supported by the
record, but legal conclusions are reviewed de novo. See id. The scope of our
review is limited to “only the suppression hearing record and excludes
evidence elicited at trial.” Id.
At the outset, we find that Appellant’s overbreadth challenge is
preserved for appellate review. In his motion to suppress, Appellant argued
that the warrant for the search of his phone was not drafted with sufficient
particularity to pass constitutional muster because it encompassed items for
which there was no probable cause.
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Recently, in Commonwealth v. Ani, 293 A.3d 704, 716 (Pa. Super.
2023), this Court explained that the particularity requirement for a warrant
subsumes two distinct types of challenge to a warrant’s validity. The first type
is a claim that a warrant is not “particular enough,” allowing police to rely on
an ambiguity of search terms to rummage through a defendant’s belongings
at will. See id. The second type of claim is an “overbreadth” challenge, in
which the asserted defect is that the described items to be seized are definite,
but so broad in scope that the search encompasses items for which there is
no probable cause. See id.
Appellant’s particularity challenge could have been more precise in his
written motion, and he did not elaborate on the nature of his contention at
the suppression hearing. However, the argument he made about the defect
of the search warrant encompasses the specific issue now raised on appeal,
see Ali, 293 A.3d at 716, and the trial court considered the overbreadth
challenge in its 1925(a) opinion. We likewise find that Appellant’s claim is
preserved, enabling us to consider its merits.
Under both the Fourth Amendment of the United States Constitution and
Article I, Section 8 of the Pennsylvania Constitution, individuals are
guaranteed the right to be free from unreasonable searches and seizes. See
Commonwealth v. McMahon, 280 A.3d 1069, 1071-72 (Pa. Super. 2022)
(citing Commonwealth v. Heidelberg, 267 A.3d 492, 502 (Pa. Super.
2021)(en banc)). Generally, police may not search for or seize evidence
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belonging to an individual without first obtaining a warrant supported by
probable cause. See Heidelberg, 267 A.3d at 502.
Probable cause exists where, “given all the circumstances set forth in
the affidavit . . . there is a fair probability that contraband or evidence of crime
will be found in a particular place.” Commonwealth v. Young, 287 A.3d
907, 919 (Pa. Super. 2022) (quoting Commonwealth v. Green, 265 A.3d
541, 551 (Pa. 2021)). Search warrants must “describe with particularity the
items sought, to establish that ‘citizens generally enjoy protection . . . from
general, exploratory searches by government actors.’” Young, 287 A.3d at
919 (quoting Commonwealth v. Rega, 70 A.3d 777, 785 (Pa. 2013)). A
warrant is unconstitutionally overbroad where it authorizes a search and
seizure of specific material for which there is no probable cause. See id., at
920. The “standard for an overbreadth challenge applies equally to the search
of a digital space as it does for a physical search.” Green, 265 A.3d at 553-
54.
“[I]n any assessment of the validity of a description contained in a
warrant, a court must initially determine for what items probable cause
existed.” Commonwealth v. Rivera, 816 A.2d 282, 290-91 (Pa. Super.
2003). A warrant is valid if there is no “unreasonable discrepancy” between
the listed items and the items for which there was probable cause to search.
See id. “Because the particularity requirement in Article I, Section 8 is more
stringent than in the Fourth Amendment, if the warrant is satisfactory under
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the Pennsylvania Constitution it will also be satisfactory under the federal
Constitution.” Commonwealth v. Orie, 88 A.3d 983, 1003 (Pa. Super.
2014).
Here, the search warrant for Appellant’s cellular phone is plainly
overbroad. The items to be searched for and seized were enumerated in the
warrant so that the entirety of the device’s contents were identified. The
search was in no way limited to the recovery of evidence of a crime relating
to the minor victims. As a result, police were permitted to search and seize
material from the phone that had nothing to do with the allegations against
Appellant. The search was therefore unconstitutional because it was not
limited to items for which police had probable cause of a crime. See e.g.,
Commonwealth v. Melvin, 103 A.3d 1, 18 (Pa. Super. 2014) (warrant for
search of email account was overbroad because, despite that there was
probable cause that “evidence of criminal activity could be found in emails in
the account[,] it did not justify a search of every email therein”).3
Although the warrant was overbroad, that does not end our inquiry. We
must next determine whether the admission of the photos downloaded from
Appellant’s cell phone caused him prejudice. “An error involving state or
3 It is possible for the defect in an overbroad warrant to be cured by limiting
language in supporting documents, such as an affidavit of probable cause. See Young, 287 A.3d at 929-31. But here, the documents supporting the warrant do not cure the warrant’s overbreadth because they contain identical, and equally overbroad, lists of items to be seized from Appellant’s cell phone.
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federal constitutional law ‘can be harmless only if the appellate court is
convinced beyond a reasonable doubt that the error is harmless.’” Melvin,
103 A.3d at 20 (quoting Commonwealth v. Story, 383 A.2d 155, 161 (Pa.
1978)). Harmless error may be found where:
(1) The error did not prejudice the defendant or the prejudice was de minimis; (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.
Commonwealth v. Hutchinson, 811 A.2d 556, 561 (Pa. 2002) (quoting
Commonwealth v. Robinson, 721 A.2d 344, 350 (Pa. 1999)).
In the present case, the admission of the photos was harmless beyond
a reasonable doubt for several reasons. First, Detective Reeves had reviewed
the photos after receiving Appellant’s consent to search his phone, and he
would have been permitted to describe the images to the jury even had the
photos been ruled to be inadmissible at the trial. See e.g., Commonwealth
v. Rovinski, 704 A.2d 1068, 1074 (Pa. Super. 1997) (witnesses permitted to
describe photographs they had seen before those photos had been admitted
into evidence). The photos’ content was therefore partially cumulative of
available evidence in the form of the detective’s testimony.
Second, Appellant admitted to facts that proved he had an inappropriate
relationship with the victims, again making the photos cumulative of other
evidence. For example, Appellant did not dispute that he “loved” L.H., that
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he frequently sent text messages to the child, that he had taken her to his
house without her guardian’s permission, and that he had often touched
various parts of the child’s body. He also could not have disputed the fact
that he had numerous photos of L.H. in his phone because he had allowed
Detective Reeves to look at them. Thus, the suggestive nature of a fraction
of the photos merely corroborated the established fact that Appellant’s
feelings for the victims were not always platonic.
Third, the photos themselves were not inflammatory, and Appellant’s
possession of them did not constitute a crime. The vast majority of the photos
showed D.H. engaged in normal everyday activities, such as a scaling a
climbing wall or entering a swimming pool. Only a few of them were arguably
suggestive of an improper motive on Appellant’s part – those taken from the
behind the child and apparently accentuating her buttocks. And even those
questionable photos were subject to interpretation, in that a reasonable
person could see them in a completely innocent light. Thus, while the
warrant’s overbreadth made it defective, this defect had minimal impact under
the circumstances, such that the admission of the photos was harmless
beyond a reasonable doubt.
Appellant’s second (and final) claim in this appeal is that the trial court
abused its discretion in sentencing him to an aggregate prison term of 23 to
46 years. He asserts that he received a de facto life sentence, as Appellant
will not be eligible for parole until he is 92 years old. The specific legal basis
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for the challenge is that trial court violated the Sentencing Code by failing to
consider individualized sentencing factors, such as his rehabilitative needs and
lack of a prior criminal record. Appellant takes particular issue with the trial
court’s reference to a 93-year-old repeat sex offender, arguing that the trial
court made an improper generalization about the likelihood of recidivism from
that single instance despite the low probability that an elderly sex offender
will recidivate. See Appellant’s Brief, at 36-37.
“[A] challenge to the discretionary aspects of sentencing is reviewed for
an abuse of discretion.” Commonwealth v. Seagraves, 103 A.3d 839, 842
(Pa. Super. 2014). The right to review of a discretionary aspect of a
sentencing is not absolute, and such a challenge “must be considered a
petition for permission to appeal[.]” Commonwealth v. Fiascki, 886 A.2d
261, 263 (Pa. Super. 2005). In order to invoke this Court’s jurisdiction to
review such claims, an appellant must satisfy a four-part test:
(1) whether appellant has filed a timely notice of appeal . . . ; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence . . . ; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code.
Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015).
A substantial question for review exists only where an appellant asserts
"a colorable argument that the sentencing judge's actions were either
inconsistent with a specific provision of the Sentencing Code or contrary to
the fundamental norms underlying the sentencing process." Commonwealth
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v. Bynum-Hamilton, 135 A.3d 179, 184 (Pa. Super. 2016). Such a
determination "must be evaluated on a case-by-case basis." Id.
Here, we find that Appellant has successfully invoked our jurisdiction to
review a discretionary aspect of his sentence. He timely appealed his
judgment of sentence, preserved the sentencing issues now before us, and
filed a brief that comports with Pa.R.A.P. 2119(f). Appellant also raised a
substantial question regarding whether the trial court properly took his
advanced age and rehabilitative needs into account. See Commonwealth v.
Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (septuagenarian consecutively
sentenced to what may be a life term arguing failure to consider rehabilitative
needs raised a substantial question); Commonwealth v. Coulverson, 34
A.3d 135, 148 (Pa. Super. 2011) (explaining that a sentence may be excessive
where the lower range of a prison term is unlikely to terminate prior to the
end of a defendant’s life span). He argues that the trial court failed to comply
with the individualized sentencing requirements mandated by section 9721(b)
of the Sentencing Code. We will therefore consider the merit of his claim that
the trial court abused its discretion by imposing an excessive sentence.
"Sentencing is a matter vested in the sound discretion of the sentencing
judge, and a sentence will not be disturbed on appeal absent a manifest abuse
of discretion." Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super.
2006) (citation omitted). To establish an abuse of discretion, an appellant
must show, by reference to the record, "that the sentencing court ignored or
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misapplied the law, exercised its judgment for reasons of partiality, prejudice,
bias, or ill will, or arrived at a manifestly unreasonable decision." Id.
In fashioning a sentence, a judge must consider factors such as the
rehabilitative needs of the defendant, the need for the protection of the public,
and the gravity of the offense. See Commonwealth v. Peters, 516 A.2d
1197, 1199 (Pa. Super. 1986). The sentencing judge is in the best position
to consider “the nature of the crime, the defendant's character, and the
defendant's displays of remorse, defiance, or indifference.” Commonwealth
v. Fries, 523 A.2d 1134, 1135 (Pa. Super. 1987). "[T]here is no requirement
that a sentencing court's imposition of sentence must be the minimum
possible confinement[.]" Commonwealth v. Walls, 926 A.2d 957, 965 (Pa.
2007). A trial court instead has discretion to run sentences concurrently or
consecutively to other sentences being imposed. Commonwealth v.
Mouzon, 828 A.2d 1126, 1130-1131 (Pa. Super. 2003).
At the sentencing in the case at hand, the trial court considered all
mandatory sentencing factors when imposing a prison term that as well within
the statutory maximum. In fact, the lion’s share of the aggregate sentence –
two consecutive 10-year terms – results from minimum terms that were
statutorily mandated and not a matter of judicial discretion.
Additionally, the trial court adhered to individualized sentencing
requirements by stating on the record the reasons for the length of the
sentence. The trial court explicitly considered the nature of Appellant’s
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offenses, his personal history, the protection of the public, the impact on the
community, and Appellant's rehabilitative needs.
Appellant argues that the trial court failed to consider his age and
improperly referred to another instance of an elderly sex offender who
reoffended on parole. In context, however, the trial court’s reference was not
an abuse of discretion or otherwise a departure from the requirements of an
individualized sentencing.
Defense counsel had argued at the sentencing hearing that the 23-year
minimum term was too long because Appellant would not survive to become
parole eligible at the age of 92. The trial court gave credence to that
possibility, but noted briefly that a parolee of that age may still commit a
sexual offense and pose a risk to the public. The trial court was not applying
an unfounded generalization about elderly offenders to Appellant. Rather, the
trial court was accurately stating that it could not presume that Appellant
would pose no risk to the public if he lived long enough to be eligible for parole.
Thus, we conclude that Appellant’s challenge to the discretionary aspects of
his sentence has no merit and that the judgment of sentence must be upheld.
Judgment of sentence affirmed.
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Date: 4/23/2024
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