J-A25041-25 2026 PA Super 145
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KENNETH SULLIVAN SMITH :
:
Appellant : No. 2702 EDA 2024
:
Appeal from the Judgment of Sentence Entered September 6, 2024
In the Court of Common Pleas of Pike County Criminal Division at No(s):
CP-52-CR-0000328-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KENNETH SULLIVAN SMITH :
:
Appellant : No. 2703 EDA 2024
:
Appeal from the Judgment of Sentence Entered September 6, 2024
In the Court of Common Pleas of Pike County Criminal Division at No(s):
CP-52-CR-0000075-2021
BEFORE: LAZARUS, P.J., BOWES, J., and FORD ELLIOTT, P.J.E.*
CONCURRING OPINION BY BOWES, J.: FILED JULY 8, 2026
I agree with my esteemed colleagues’ resolutions as to most of
Appellant’s claims of error, as well as with the overall decision to affirm his
judgment of sentence. I write to state my differing reasoning for concluding
* Retired Senior Judge assigned to the Superior Court.
J-A25041-25
that he is not entitled to relief on his challenge to the trial court’s denial of his
motion to suppress the evidence obtained from his cellphone.
I begin with a review of the applicable legal principles. Procedurally,
suppression of evidence is governed by Pa.R.Crim.P. 581. That Rule provides
that a motion to suppress “shall state specifically and with particularity the
evidence sought to be suppressed, the grounds for suppression, and the facts
and events in support thereof.” Pa.R.Crim.P. 581(D). Thereafter, “[t]he
Commonwealth shall have the burden of going forward with the evidence and
of establishing that the challenged evidence was not obtained in violation of
the defendant's rights.” Pa.R.Crim.P. 581(H).
Turning to the substantive law, “the Fourth Amendment of the United
States Constitution and Article 1, [§] 8 of the Pennsylvania Constitution
protect against unreasonable searches and seizures.” Commonwealth v.
Choice, 345 A.3d 719, 733 (Pa.Super. 2025) (cleaned up). The purposes of
these provisions are “to prevent general (i.e., overbroad) searches and to
ensure that the search will be carefully tailored to its justifications and will not
take on the character of the wide-ranging exploratory searches the Framers
intended to prohibit.” Id. (cleaned up).
An overbroad warrant is one which permits “in clear or specific terms
the seizure of an entire set of items, or documents, many of which will prove
unrelated to the crime under investigation[,]” thus authorizing an
unconstitutional “general search and seizure.” Commonwealth v. Young,
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287 A.3d 907, 920 (Pa.Super. 2022) (cleaned up). The overbreadth analysis
is the same for physical and digital spaces, and entails determining “whether
the warrant described as nearly as may be those items for which there is
probable cause.” Commonwealth v. Green, 265 A.3d 541, 554 (Pa. 2021).
Our Supreme Court has explained that “the natural starting place in
assessing the validity of the description contained in a purportedly overbroad
warrant is to determine for what items probable cause existed.” Id. at 551.
“After establishing the scope of probable cause, the sufficiency of the
description must then be measured against those items for which there was
probable cause.” Young, 287 A.3d at 920 (cleaned up). “Any unreasonable
discrepancy between the items for which there was probable cause and the
description in the warrant requires suppression.” Id. (cleaned up). Thus,
“overbreadth is a legal issue that is based solely on the face of the affidavit,”
rather than on evidence adduced at a suppression hearing. Id. at 917. Where
a warrant is facially defective due to overbreadth, all evidence seized pursuant
to it must be suppressed. See, e.g., Commonwealth v. Grossman, 555
A.2d 896, 900 (Pa. 1989) (reversing denial of suppression of all evidence
seized pursuant to a facially overbroad warrant that authorized the seizure of
the paper files of all clients although there was probable cause only as to three
particular files described in the affidavit).
As this Court elucidated:
For example, a warrant that authorizes the search and seizure of
a flash drive and “any contents contained therein,” without
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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).
Commonwealth v. Moser, 283 A.3d 850, 857-58 (Pa.Super. 2022) (holding
warrant was not overbroad because, while it “allowed police to search the
entirety of the data in Moser’s cellular phone[,]” it only permitted them to
seize files “that establish[ed] or provide[d] details regarding the nature of the
relationship between Moser and the victim relating to [enumerated offenses]”
(cleaned up)).
In the instant case, Corporal Shawn Smith authored a thirteen-page
affidavit of probable cause to support his application for a search warrant.
Therein, he detailed how, in his training and experience, individuals involved
in the sale and acquisition of controlled substances use cellphones, particularly
voice, text, and social media applications, to communicate about their illegal
activities. Searches of the phones have revealed those communications and
contact information for conspirators. Further, call logs and location data from
the phones can be used to pinpoint the time and place of drug deals, and
photographs and videos stored on the phone have been known to depict
people and things involved in the crimes, such as co-conspirators and
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controlled substances. Having obtained Appellant’s name, phone number, and
Facebook profile information from the victim’s cellphone, along with evidence
of exchanged messages that included the discussion and images of packages
of heroin, Corporal Smith investigated Appellant’s background, confirming his
association with the phone number listed in the victim’s phone and Appellant’s
drug-related criminal history. The affidavit also included a narrative of
Corporal Smith’s interactions with the confidential informant (“CI”) whose
assistance resulted in Appellant’s arrest and the seizure of a Chevrolet Malibu
in which he and Paul Wassel travelled to the controlled buy that precipitated
Appellant’s arrest. See generally Affidavit of Probable Cause, 6/25/20, at 1-12.1 Based upon this information, Corporal Smith opined that he had probable
cause to believe that the Malibu contained drugs and that “the extraction of
the cellular phones as described on the application for the search warrant will
yield evidence related to [various specified drug offenses].” Id. at 13.
Accordingly, the corporal applied for a warrant to search the Malibu, with
the application identifying the items to be searched and seized as follows:
Heroin/Fentanyl, glassine packets . . . Marijuana, syringes, drug
packaging material, drug paraphernalia commonly used for to
[sic] introduce a controlled substance into a human body,
packaging marijuana, US Currency, firearms to include handguns,
receipts, identifying vehicle information to include registration,
vehicle title, rental receipts, sales receipts, identification cards,
Chevrolet Malibu infotainment system to include connected
1 The Commonwealth introduced the affidavit of probable cause and the search
warrant at the June 2, 2022 omnibus pretrial hearing as Commonwealth’s Exhibit 2.
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Bluetooth devices, contacts, locations, messages, phone calls,
vehicle information logging, cellular phones which are believed to
be owned by [Appellant] and/or Paul WASSEL.
Search Warrant Application and Authorization, 6/25/20, at 1. The description
continued on the next page thusly:
Information contained within the cellular phones currently inside
the white Chevrolet Malibu Sedan to include all owner information
pertaining to the subscriber’s identity, including but not limited to
name, address and telephone number associated with the cellular
phones. All usernames, passwords, installed applications,
contacts, call logs, voicemail, Short Message Service and MultiMedia Messages, instant messaging services to include those
through social medical apps, chats, emails, documents, picture
files, video files, electronic notes, locations saved or displayed via
GPS or mapping application, and any downloaded files, including
date created, shared or saved through any installed applications
including Facebook, or any other social media application. All
internet browser history, bookmarks and search history. All
wireless internet connections to include Internet Protocol
Addresses. All media storage devices stored within the examined
cellular device identified as any media card, SIM card, micro SD
card and the data contained therein.
Id. at 2. The magisterial district judge authorized the warrant, and, pursuant
to it, Appellant’s iPhone was seized, its data was extracted, and its contents
searched for incriminating evidence.
In his operative pro se omnibus pretrial motion, Appellant stated three
bases for excluding the evidence obtained from his phone pursuant to this
warrant. See Omnibus Pre-Trial Motion, 3/29/22, at 13-15. I perceive the
pertinent basis to be the one raised in ¶ 6 of the suppression portion of his
motion, which stated as follows:
[Appellant] did not voluntarily provide [the] password, or facial
recognition to unlock, as there was concern over invasion of
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privacy, exposure of private family photographs, and disclosure of
explicit photographs of his fiancée[.] In the ensuing phone
extraction the OVERBREADTH of the data collected was grossly
invasive, egregious in nature towards the constitutionally
guaranteed privacy of a United States citizen. See United States
of America vs. Alston[,] 2016 U.S. Dist. LEXIS 63776 No. 1S
Cr. 43S (CM).[2] (Discusses what would be considered
overbreadth of information gathered). Attorney/client protected
communications and correspondence (texts, emails, and
voicemails) between [Appellant] and his criminal defense legal
counsel . . . and personal injury legal counsel . . . . These photos
and sensitive personal information have been disseminated to an
unknown number of law enforcement personnel, the Pike and
Wayne County District Attorney’s offices defense legal counsels
and their respective clients. [Appellant]’s two codefendants in
both instant cases . . . have the Cellebrlte extraction with the
explicit photos, all his private financial information, protected
correspondence from [Appellant]’s legal counsels, and medical
doctors going back to 2017. The majority of this data has nothing
to do with a drug conspiracy alleged to have occurred from April
24, 2020, to June 25, 2020. . . . .
Id. at 14-15.
Appellant reiterated his argument at the suppression hearing,
complaining:
Alright, so then also the Commonwealth has not discussed the
overbreadth of discovery of information mainly about the phone
2 In United States v. Alston, 2016 WL 2609521 (S.D.N.Y. Apr. 29, 2016),
the defendant challenged a warrant as overbroad, alleging that it unconstitutionally “authorized nothing less than a wholesale seizure of Mr. Alston’s records and communications with everyone regardless of whether they were linked to any crime.” Id. at *5 (cleaned up). The court denied the motion, concluding that it was not overbroad because the warrant contained language limiting the search to items for which there was probable cause. For example, the warrant, inter alia, permitted the search of “all SMS (simple message service) messages pertaining to violations of Title 18, United States Code, Section 846 (conspiracy to distribute narcotics) (the “TARGET OFFENSE”),” and “all files containing text, photos, sounds recordings, or videos pertaining to the TARGET OFFENSE.” Id. at *6 (cleaned up).
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like the hard drive Cellebrite extraction dumped everything from
the phone going all the way back to 2017, and if we’re talking
about an alleged drug conspiracy or what have you between April
2020 to June 2020, I don't see how what is anything to do with
2017 and ’18 family photos and the compromising photos if you
will and all the other information, also correspondences with my
[attorneys] and just . . . the overbreadth.
N.T. Omnibus Pretrial Hearing, 6/22/22, at 53-54. The suppression court
interrupted, suggesting that his complaints about what he deems to be
irrelevant evidence would better be addressed through a motion in limine. Id.
at 54. Appellant responded by referencing what was transcribed as “United
States of America vs. Austin” and its discussion of overbreadth.3 Id. The
court ultimately denied all Appellant’s suppression requests collectively,
indicating that it was “persuaded at this time that the evidence gathered by
the Commonwealth and disclosed to [Appellant] as discovery was not obtained
in violation of [Appellant]’s rights or in violation of the Pennsylvania Rules of
Criminal Procedure.” Suppression Court Opinion, 1/9/23, at 6.
The Majority holds that Appellant failed to preserve his claim that the
warrant permitting the search and seizure of his cellphone was
unconstitutionally overbroad because he did not comply with the mandate of
Pa.R.Crim.P. 581(D) that a suppression motion “shall state specifically and
with particularity the evidence sought to be suppressed, the grounds for
suppression, and the facts and events in support thereof.” Majority Opinion
3 From the context, it seems likely that Appellant intended to invoke the Alston case cited in his motion.
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at 16-17 (quoting Pa.R.Crim.P. 581(D)). My colleagues opine that Appellant
neglected to “assert any foundational facts or applicable law in his suppression
motion which listed various items.” Id. at 16 (citing Omnibus Pre-Trial Motion,
3/29/22, at 13-14).
We have held that, “[i]n the extreme case, a complete failure to comply
with the specificity requirements of Rule 581(D) will result in waiver, as those
requirements have been held to be mandatory.” Young, 287 A.3d at 916
(cleaned up). In my view, the instant case involves no such deficiency in Rule
581(D) compliance. Appellant’s pro se motion stated with specificity the
evidence to be suppressed, namely “all evidence originating from the iPhone
11 Pro Max with phone number (845) 793-2214 associated with [Appellant],
including but not limited to text messages, Facebook messages, photos,
screenshots, and/or the Cellebrite logical and physical data extraction.”
Omnibus Pre-Trial Motion, 3/29/22, at 14. The ground for suppression in ¶ 6
was overbreadth, and he cited a case, albeit not one of precedential
significance in Pennsylvania, that sufficiently alerted the Commonwealth and
the court of the legal basis for his challenge. Appellant further presented the
foundational facts that the Commonwealth’s search and seizure of the phone’s
contents was not limited in time or subject matter to the charged offenses.
Upon this record, I cannot agree with the Majority that waiver is apt.
From my examination of the substance of Appellant’s claim, I find it
meritorious. I agree with the Commonwealth that Corporal Smith in his
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affidavit stated probable cause to establish that evidence of drug trafficking in
the summer of 2020, and his connection with the victim, was likely to be found
on Appellant’s phone. However, the warrant does not authorize a search
limited to items connected with the criminal activity at issue as did the
warrants in Green, Moser, and Alston. Rather, the warrant herein
authorized the search and seizure of every bit of data recovered from
Appellant’s phone regardless of timeframe or connection with the alleged
criminal activity. As such, the warrant was unconstitutionally overbroad as
were the warrants in Grossman, Young, and Wecht. Therefore, I would
hold that the suppression court erred in denying Appellant’s motion to
suppress all evidence obtained from his iPhone pursuant to that warrant.
However, that does not conclude my analysis, for, “[o]nce a reviewing
court has decided admitted evidence should have been suppressed, it must
determine beyond a reasonable doubt whether the error was harmless.”
Commonwealth v. Rosendary, 313 A.3d 236, 249 n.13 (Pa.Super. 2024).
“Where the error is harmless, a new trial is not warranted.” Id. “An error is
harmless if it could not have contributed to the verdict, or stated conversely,
an error cannot be harmless if there is a reasonable possibility the error might
have contributed to the conviction.” Commonwealth v. Kearney, 341 A.3d
774, 785 (Pa.Super. 2025). We may conclude an error is harmless if, inter
alia, “the erroneously admitted evidence was merely cumulative of other
untainted evidence which was substantially similar to the erroneously
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admitted evidence,” or where “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.” Id. at 785-86 (cleaned up).
I am convinced that the admission of the evidence from Appellant’s
phone was harmless in that it was substantially similar to properly admitted
evidence gleaned from other sources. At trial, in addition to the incriminating
information obtained from Appellant’s jail calls and his recorded conversation
with the CI, along with third-party records establishing the phone numbers
and call details for Appellant and his co-conspirator, the Commonwealth
offered text and Facebook messages between the victim and Appellant or his
co-conspirator obtained from the victim’s phone. I thus disagree with
Appellant’s contention that the error was not harmless because evidence from
his phone “was essential to the Commonwealth’s case[.]” Appellant’s brief at
53. Rather, the wrongfully-obtained evidence merely corroborated the
Commonwealth’s similar, untainted evidence. I am confident that the verdict
would have been the same had the court properly suppressed the evidence
from Appellant’s phone.
In sum, while I join the Majority’s resolution of Appellant’s challenges
concerning the appointment of standby counsel and a private investigator; the
admission of recordings of Appellant’s interactions with the CI and text
messages from the phones of the victim and the CI; the refusal to allow
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counsel to relitigate Appellant’s pro se issues; the sufficiency of the evidence
to establish the crime of DDRD; and the denial of Appellant’s motion to sever
the cases, I concur only in the result my colleagues reach as to the suppression
issue.4
4 I note that our Supreme Court’s recent trial consolidation decision in Commonwealth v. Walker, 350 A.3d 54 (Pa. 2026), which addressed the admissibility of evidence of separately-charged offenses, is not implicated in this case because the evidence was admissible pursuant to res gestae exception to Pa.R.E. 404(b) rather than to show a common plan, scheme, or design.
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