J-S11003-26
2026 PA Super 209
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CLINTON M. THOMAS :
:
Appellant : No. 429 WDA 2025
Appeal from the Judgment of Sentence Entered March 12, 2025
In the Court of Common Pleas of Fayette County
Criminal Division at No: CP-26-CR-0001597-2023
BEFORE: LAZARUS, P.J., STABILE, J., and NEUMAN, J.
OPINION BY STABILE, J.: FILED: September 21, 2026
Appellant, Clinton M. Thomas, appeals from the judgment of sentence
entered on March 12, 2025, by the Court of Common Pleas of Fayette County
under which he was sentenced to an aggregate six to 12 years imprisonment
for his convictions on the possession and dissemination of child sexual abuse
material (“CSAM”) and use of a communication facility to do so. He challenges
the denial of his suppression motion and the admissibility and sufficiency of
evidence. Upon review, we affirm Appellant’s convictions for sexual abuse of
children (possession),1 and criminal use of a communication facility2 but
reverse his conviction for sexual abuse of children (dissemination)3. We
therefore vacate the judgment of sentence, remand for resentencing on
Counts 1-20, and 22, and grant a new trial on Count 21.
1 18 Pa.C.S.A. § 6312(d).
2 18 Pa.C.S.A. § 7512(a).
3 18 Pa.C.S.A. § 6312(c).
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On August 18, 2023, Appellant was charged with 20 counts of sexual
abuse of children (possession) and one count each of sexual abuse of children
(dissemination) and criminal use of a communication facility. This matter
originated when Google and Facebook reported CSAM to the National Center
for Missing and Exploited Children4 (“NCMEC”) through NCMEC’s
CyberTipline5. The CyberTipline reports were sent from NCMEC to the
Pennsylvania State Police (“PSP”) via the Internet Crimes Against Children
(“ICAC”) network.6 Upon receipt of this information, PSP Corporal Nathan
Brown, the Coordinator of the Southwestern Pennsylvania Computer Crimes
Unit, began an investigation.
The information in the CyberTipline reports contains, inter alia,
usernames, e-mail addresses, telephone numbers, IP addresses, and
identification of CSAM. N.T. Trial, 12/3/24, at 36. Based on this information,
4 As more fully discussed, infra, “[t]he National Center for Missing & Exploited
Children is a private, non-profit 501(c)(3) corporation whose mission is to help find missing children, reduce child sexual exploitation, and prevent child victimization.” See https://www.missingkids.org/footer/about.
5 “NCMEC’s CyberTipline is the nation’s centralized reporting system for the
online exploitation of children. The public and electronic service providers can make reports of suspected online enticement of children for sexual acts, child sexual molestation, child sexual abuse material, child sex tourism, child sex trafficking, unsolicited obscene materials sent to a child, misleading domain names, and misleading words or digital images on the internet.” See https://www.missingkids.org/gethelpnow/cybertipline#whathappenstoinform ationinacybertip.
6 NCMEC collects and analyzes digital reports of child exploitation, then routes
those leads to regional ICAC task forces for local law enforcement investigation and arrests.
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Corporal Brown issued an administrative subpoena to Verizon, the internet
service provider in this case, to identify who owned the IP address on the
dates and times contained within the CyberTipline reports. Id. at 37. Upon
return of information under this subpoena, the physical address for Appellant
was identified. Id. Corporal Brown used this information to apply for a search
warrant for the property identified as Appellant’s location. Id. at 38. The
warrant allowed for the search and seizure of all electronically stored media
or information, including all cell phone devices and computers. N.T.
Suppression, 10/17/24, Commonwealth Exhibit 2.
Upon execution of the warrant, Appellant was found in the home.
Several electronic devices were found and seized, including a white cell phone
case, tablet, black and red cell phone case, a gray TCL Cricket phone, and a
Samsung Android phone. N.T. Trial, 12/3/24, Commonwealth Exhibit 1. After
the items were seized, Corporal Brown examined the devices for CSAM. He
testified that CSAM was found on the Samsung and TCL cell phones. This
evidence formed the basis for the criminal complaint and information filed
against Appellant.
Appellant filed a motion to suppress all evidence seized as a result of
what he maintained were unconstitutional warrantless searches by Facebook,
Google, and NCMEC acting as government agents in violation of the Fourth
Amendment and Article I, Section 8 of our Pennsylvania Constitution. The
motion also sought to suppress any evidence obtained from Appellant’s
residence under the search warrant issued that was premised upon what
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Appellant claimed was illegally seized evidence by Google, Facebook and
NCMEC, as fruit of the poisonous tree. The motion was denied.
A jury trial was held on December 3, 2024, whereupon Appellant was
convicted on all counts. Sentencing was deferred pending the assessment by
the Sexual Offenders Assessment Board (“SOAB”) to determine whether
Appellant should be classified as a sexually violent predator (“SVP”).
On March 12, 2025, Appellant was sentenced to an aggregate six to 12
years imprisonment. He was not classified as an SVP. Appellant filed a timely
notice of appeal. Both the trial court and Appellant have complied with
Pa.R.A.P. 1925. Appellant raises the following issues for our review:
1. Whether the suppression court committed reversible error by
failing to suppress evidence that police obtained based on
CyberTipline Reports by [NCMEC] where such evidence was
obtained by means of a warrantless search of Appellant’s
electronic files maintained by Google and Facebook[.]
2. Whether the trial court committed reversible error by admitting
testimony and evidence regarding the contents of the
CyberTipline Reports into evidence over Appellant’s objections
based on hearsay and lack of foundation[.]
3. Whether the Commonwealth failed to present sufficient
evidence to prove beyond a reasonable doubt that Appellant
intentionally possessed child [sexual abuse material] or
disseminated child [sexual abuse material] through a
communication facility[.]
Appellant’s Brief, at 3-4.
As Appellant's third issue challenging the sufficiency of the evidence, if
meritorious, would result in discharge, we address that issue first.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011); see also
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Commonwealth v. Mullins, 918 A.2d 82, 85 (Pa. 2007) (“[t]he Double
Jeopardy Clause bars retrial after a defendant's conviction has been
overturned because of insufficient evidence.”).
1. Sufficiency
Upon review of a sufficiency challenge, our standard of review is:
whether viewing all the evidence admitted at trial in the light most
favorable to the verdict winner, there is sufficient evidence to
enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the finder of fact, while passing upon the
credibility of witnesses and the weight of the evidence produced
is free to believe all, part or none of the evidence.
Commonwealth v. Smith, 206 A.3d 551, 557 (Pa. Super. 2019) (citation
omitted). In conducting a sufficiency review, we consider all evidence actually
admitted at trial and do not review a diminished record. Id. Consequently,
our sufficiency examination is unaffected by the subsequent resolution of any
evidentiary issues raised by Appellant.
The entirety of Appellant’s sufficiency arguments across all three
offenses for which he was convicted is as follows:
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In this case, [Appellant] respectfully submits that [the]
Commonwealth failed to present sufficient evidence that he
violated [Child sexual abuse material], 18 Pa. C.S. §
6312(d) (20 counts); [Dissemination of photographs,
videotapes, computer depictions and films] 18 Pa. C.S. §
6312(c) (one count); or Criminal Use of Communication
Facility, 18 Pa. C.S. § 7512(a).
In order to establish that [Appellant] was in possession of
[CSAM] in violation of Section 6312(d), the Commonwealth
must prove three elements beyond a reasonable doubt: 1)
there must be a depiction of an actual child engaged in a
prohibited sexual act or simulated sexual act; 2) the child
depicted must be under the age of 18; and 3) defendant
must have knowingly controlled and possessed the
depiction. Commonwealth v. Colon-Plaza, 136 A.3d 521,
52[6] (Pa. Super. 2016); Commonwealth v. Koehler, 914
A.2d 427, 436 (Pa. Super. 2006). Similarly, to prove
violations of Sections 6312(c) and Criminal Use of
Communication Facility, the Commonwealth must prove
beyond a reasonable doubt that [Appellant] knowingly and
intentionally distributed, delivered, disseminated,
transferred or displayed [CSAM] or that he used a
communication for such purpose. 18 Pa. C.S. § 6312(c);
Commonwealth v. Sauers, 159 A. 3d 1 (Pa. Super. 2017)
A review of the evidence and testimony submitted at trial
demonstrates that the Commonwealth failed to prove
beyond a reasonable doubt that [Appellant] knowingly
possessed and controlled [CSAM]. Indeed, the
Commonwealth did not produce any direct evidence that
[Appellant] downloaded any of the [CSAM] images that the
Commonwealth displayed to the jury at trial. Moreover, the
Commonwealth failed to present sufficient evidence that
[he] transmitted any of the images through a
communication facility such as e-mail or social media.
Appellant’s Brief, at 21-22.
The analysis provided under Appellant’s sufficiency challenge, which he
neatly compacts into a single paragraph, does not separately discuss the
elements of each offense, but rather summarily argues that the evidence was
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insufficient to establish that Appellant knowingly possessed CSAM, that he
downloaded any CSAM images, and that he transmitted any images through
a communication facility.7 Absent from this analysis is discussion of any
record evidence, and in particular, in a light most favorable to the
Commonwealth as the verdict winner. Smith, supra. The trial court,
nonetheless, discussed the record evidence on these sufficiency claims which
we quote verbatim:
The testimony of Corporal Brown alone satisfies all three []
elements. Corporal Brown found images of exposed children
under the age of 18, and some engaged in sexual acts. These
images were published to the members of the jury during the
Commonwealth's case-in-chief. Corporal Brown found these
images on the two cell phones found within Appellant's control.
Further, the phones were examined for dissemination, discussed
further below, wherein the [CSAM] were found to have been sent
using Facebook and Google, solidifying that the Appellant had
knowledge of the possession of these depictions.
For these reasons, the Commonwealth has provided sufficient
evidence to prove beyond a reasonable doubt that Appellant
possessed [CSAM].
Under 18 Pa.C.S.A. § 6312(c), a person is guilty of disseminating
photo/films of child sex acts when he “[K]nowingly sells,
distributes, delivers, disseminates, transfers, displays or exhibits
to others, or who possesses for the purpose of sale, distribution,
delivery, dissemination, transfer, display or exhibition to others,
7 We note that we could find waiver of the sufficiency claim because Appellant
failed to specify the element or elements challenged in his Rule 1925(b) statement. See Commonwealth v. McFarland, 278 A.3d 369, 381 (Pa. Super. 2022) (citation omitted). Because Appellant specified the element challenged in his brief and the trial court addressed his sufficiency claims, we will decline to find waiver. See Commonwealth v. Martz, 2022 WL 1698148 at *2 n.5 (Pa. Super. filed May 27, 2022) (unpublished memorandum).
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any child sexual abuse material or artificially generated child
sexual abuse material.”
Here, Appellant was found with numerous photographs and
depictions of [CSAM]. Corporal Brown testified that images were
sent from Appellant's electronic device to an email out of the
country. The image was distributed through Appellant's Facebook
and corroborated as Appellant's account through his email
address. This is sufficient to show that the Appellant knowingly
disseminated [CSAM] to others.
Under 18 Pa.C.S.A. § 7512(a), a person is guilty of criminal use
of communication facility if “[T]hat person uses a communication
facility to commit, cause or facilitate the commission or the
attempt thereof of any crime which constitutes a felony under this
title.” The term “communication facility”' means a public or
private instrumentality used or useful in the transmission of signs,
signals, writing, images, sounds, data or intelligence of any nature
transmitted in whole or in part, including, but not limited to,
telephone ... or ... mail. 18 Pa.C.S.A. § 7512(c).
To support a conviction for criminal use of a communication facility
under Section 7512, “the Commonwealth must prove beyond a
reasonable doubt that: (1) [Appellant] knowingly and intentionally
used a communication facility; (2) [Appellant] knowingly,
intentionally or recklessly facilitated an underlying felony; and (3)
the underlying felony occurred.” Commonwealth v. Moss, 852
A.2d 374, 382 (Pa. Super. 2004). “Facilitation” is “any use of a
communication facility that makes easier the commission of the
underlying felony.” Id.
Here, Appellant knowingly and intentionally used his electronic
device, the Samsung and/or TCL phone, to disseminate the
images of [CSAM] through Facebook. The intentional use of
Facebook through the use of a cellphone to disseminate images
constitutes the facilitation of the felony. Lastly, the dissemination
of [CSAM] is the underlying felony.
Trial Court Opinion, 6/11/25, at 7-9. We find the trial court’s analysis and
discussion of record evidence to dispose adequately of Appellant’s sufficiency
claims. We add that the record also was sufficient to convict under section
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7512(a), in that Appellant used a communication device to facilitate the
commission of a felony. By either uploading and/or downloading CSAM onto
his cell phone(s), Appellant facilitated the commission of his felony possession
convictions through a communication device. See Commonwealth v.
Colon-Plaza, 136 A.3d 521, 527-29 (Pa. Super. 2016) (evidence clearly
sufficed to find Appellant guilty of all elements of section 7512(a) offense
beyond a reasonable doubt where CSAM was downloaded and viewed on a
laptop); Commonwealth v. Diodoro, 970 A.2d 1100, 1103 n.3 (Pa. 2009)
(accessing and viewing CSAM over the internet constitutes an offense under
section 7512(a)). Appellant is not entitled to relief on this issue.
2. Suppression; The Private Actor Doctrine
Appellant argues that the trial court committed reversible error by failing
to suppress any evidence received as the result of the warrantless searches
conducted by Google, Facebook and/or NCMEC, who he contends were acting
as agents of law enforcement and/or at the behest of law enforcement.
Omnibus Pretrial Motion, 8/25/24, ¶¶ 21, 22. Appellant contends that the
warrantless searches violated his rights under both the Fourth Amendment
and Article I, Section 8 of our Pennsylvania Constitution.8 Id. He also argues
that any evidence obtained from his residence under the search warrant
8 Since Pennsylvania case law follows federal precedent on this issue of “private actors”, see Commonwealth v. Shaffer, 209 A. 3d 957 (Pa. 2019), for convenience, our discussion when referencing the Fourth Amendment also subsumes application of this doctrine under Article 1, Section 8 of our Pennsylvania Constitution.
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should have been suppressed as fruit of the poisonous tree because the
warrant was premised upon the illegally seized evidence by Google, Facebook
and NCMEC. Id. at ¶ 23.
Our standard of review when addressing a challenge to the denial of a
suppression motion is
limited to determining whether the factual findings are supported
by the record and whether the legal conclusions drawn from those
facts are correct. We are bound by the suppression court’s factual
findings so long as they are supported by the record; our standard
of review on questions of law is de novo. Where, as here, the
defendant is appealing the ruling of the suppression court, we may
consider only the evidence of the Commonwealth and so much of
the evidence for the defense as remains uncontradicted.
Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (internal
citations omitted). Moreover, our scope of review is limited to the record
created during the suppression hearing. In re L.J., 79 A.3d 1073, 1085 (Pa.
2013).
The trial court made the following findings of fact following the
suppression hearing:
Corporal Nathan Brown, who has worked in the southwestern
Pennsylvania computer crimes unit of the Pennsylvania State
Police since 2008, reviewed three CyberTipline Reports dated May
18, 2023, May 20, 2023, and May 21, 2023. The reports had been
sent to him by [NCMEC]. According to the Reports, NCMEC is a
private, non-profit 501(c)(3) organization that serves as a
national clearinghouse and resource center for families, victims,
private organizations, law enforcement, and the public on missing
and sexually exploited child issues. NCMEC had received
information from Facebook (May 18, 2023 report) and Google
(May 20, 2023 and May 21, 2023 reports) alerting it to possible
[CSAM].
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The Reports may be summarized as follows:
(1) May 18, 2023 Report: based on information
received from Facebook, there was an “incident”
on May 15, 2023. The incident involved the chat
service/IM client Messenger and occurred
between [Appellant] and recipient Xavier
Campeau in a chat room with the name “Xavier
Campeau.” The report indicated that a total of
eleven (11) files were uploaded. The Report
states on page 15 that NCMEC did not view the
files.
(2) May 20, 2023 Report: based on information
received from Google, there was an “incident”
on May 19, 2023, which the report indicates is
the approximate date that Google became
aware of the reported material. On page 31 of
the report, it is stated that “Google became
aware of the reported content which was stored
in Google Photos infrastructure.” The report
indicated that fifty (50) files were uploaded.
The Report states on page 63 that NCMEC
viewed four (4) files.
(3) May 21, 2023 Report: based on information
received from Google, there was an “incident”
on May 20, 2023, which the report indicates is
the approximate date that Google became
aware of the reported material. On page 31 of
the report, it is stated that “Google became
aware of the reported content which was stored
in Google Photos infrastructure.” The report
indicated that two (2) files were uploaded. The
Report states on page 46 that NCMEC did not
view the files.
After receiving the CyberTipline reports, Corporal Brown viewed
the images that had been forwarded to him. In his opinion, they
met the definition of child [sexual abuse material], and he
obtained administrative subpoenas for business records from
Verizon and Google. Based on the information he received, he
determined a relevant residential address and obtained a search
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warrant for various devices, hardware, and software applications
at [Appellant’s] residence and surrounding buildings or vehicles.
Trial Court Opinion, 11/6/24, at 1-3.
The Fourth Amendment to the United States Constitution and Article 1,
Section 8 of the Pennsylvania Constitution protect citizens against
unreasonable searches and seizures by law enforcement. See U.S. Const.
amend. IV; Pa. Const. Art. I, § 8. “The proscriptions of the Fourth Amendment
and Article I, § 8, do not apply to searches and seizures conducted by private
individuals.” Commonwealth v. Harris, 817 A.2d 1033, 1047 (Pa. 2002).
However, the Fourth Amendment does protect against searches or seizures
conducted by a private party acting as an agent or instrument of the
government. Commonwealth v. Yim, 195 A.3d 922, 927 (Pa. Super. 2018)
(citing Coolidge v. New Hampshire, 403 U.S. 443 (1971)).
In Shaffer, our Supreme Court examined the “private actor doctrine”
as illustrated in the Supreme Court of the United States’ seminal decision in
United States v. Jacobsen, 466 U.S. 109 (1984):
[In Jacobsen], employees of a private freight carrier opened a
cardboard package that had been damaged by a forklift and found
a closed ten-inch tube wrapped in newspaper. Consistent with
company policy regarding insurance claims, the employees cut
open the tube to examine its contents and found several plastic
bags containing a white powder. By the time a Drug Enforcement
Administration ("DEA") agent was summoned, the employees had
returned the plastic bags to the tube and replaced the tube in the
box. Upon arrival, the DEA agent removed the tube from the box,
removed the plastic bags from the tube, field tested the powder
to determine if it was cocaine, and concluded that it was.
Additional agents subsequently arrived, conducted a second field
test, and obtained a warrant to search the mailing address listed
on the package.
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After being indicted on drug charges, the defendants filed a
motion to suppress the evidence recovered from the package,
contending that the warrant was the product of an illegal search
and seizure. The district court denied suppression. The Court of
Appeals reversed, holding that a warrant was required because
the testing of the powder constituted a significant expansion of
the earlier private search.
The High Court reversed, holding that “the federal agents did not
infringe any constitutionally protected privacy interest that had
not already been frustrated as a result of private
conduct.” Jacobsen, 466 U.S. at 126, 104 S.Ct. 165. The Court
explained that “[t]o the extent that a protected possessory
interest was infringed, the infringement was de minimis and
constitutionally reasonable.” Id. Acknowledging that the Fourth
Amendment protects against both unreasonable searches and
seizures, the Court defined a “search” as occurring “when an
expectation of privacy that society is prepared to consider
reasonable is infringed.” Id. at 113, 104 S.Ct. 1652. It defined
a “seizure” of property as occurring “when there is some
meaningful interference with an individual’s possessory interests
in that property.” Id. The Court proceeded to explain that this
constitutional protection proscribed only governmental action and
was wholly inapplicable “to a search or seizure, even an
unreasonable one, effected by a private individual not acting as
an agent of the Government or with the participation or knowledge
of any government official.” Id. (citation omitted).
Categorizing the package as an “effect” in which an individual has
a reasonable expectation of privacy, the Court observed that a
warrantless search of the package would be presumptively
unreasonable. Id. at 114, 104 S.Ct. 1652. However, the Court
opined, “the fact that agents of the private carrier independently
opened the package and made an examination that might have
been impermissible for a government agent cannot render
otherwise reasonable official conduct unreasonable.” Id. at 114-15, 104 S.Ct. 1652. Accordingly, because the initial invasion of
the package was accomplished by private action, the Court held
that the Fourth Amendment was not violated, regardless of
whether the private action was accidental, deliberate, reasonable,
or unreasonable. Id. at 115, 104 S.Ct. 1652.
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Significantly, the High Court explained that the additional
invasions of privacy by the government agent “must be tested by
the degree to which they exceeded the scope of the private
search.” Id. (citing Walter v. United States, 447 U.S. 649, 100
S.Ct. 2395, 65 L.Ed.2d 410 (1980)). The Court observed that
“[t]he Fourth Amendment is implicated only if the authorities use
information with respect to which the expectation of privacy has
not already been frustrated.” Id. at 117, 104 S.Ct. 1652. The
High Court construed the governmental actions as twofold, first
removing the contraband from its packaging and viewing it, and,
second, conducting a chemical test of the powder. Id. at 118,
104 S.Ct. 1652.
Regarding the government agent's reopening of the package after
having been told by the employees that it contained a white
powder, the Court emphasized that “there was a virtual certainty
that nothing else of significance was in the package and that a
manual inspection of the tube and its contents would not tell him
anything more than he already had been told.” Id. at 119, 104
S.Ct. 1652. As the government could use the employees'
testimony regarding the contents of the package, the Court found
that “it hardly infringed [the defendants'] privacy for the agents
to re-examine the contents of the open package by brushing aside
a crumpled newspaper and picking up the tube.” Id. The Court
observed that this governmental action did not further infringe
upon the defendants' privacy, but rather merely avoided the risk
of a flaw in the employees' recollection. Id. The High Court held
that the defendants “could have no privacy interest in the contents
of the package, since it remained unsealed and since the Federal
Express employees had just examined the package and had, of
their own accord, invited the federal agent to their offices for the
express purpose of viewing its contents.” Id. It concluded that
the DEA agent's observation of what a private party had
voluntarily made available for his inspection did not violate the
Fourth Amendment. Id.
In the same vein, the Court ruled that the removal of the plastic
bags from the tube and the visual inspection of the contents
provided the agent with no more information than what had been
discovered during the private search. Thus, the High Court
opined, the agent's actions “infringed no legitimate expectation of
privacy and hence was not a ‘search’ within the meaning of the
Fourth Amendment.” Id. at 120, 104 S.Ct. 1652. Notably, the
Court explained that while the agent's assertion of dominion and
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control over the package and its contents constituted a “seizure,”
the seizure was not unreasonable because the privacy interest in
the package had already been compromised, as it had been
opened and remained unsealed and because the agent had been
specifically invited to examine the package's contents. Id. at
120-21, 104 S.Ct. 1652. The Court ruled that “since it was
apparent that the tube and plastic bags contained contraband and
little else, this warrantless seizure was reasonable, for it is well
settled that it is constitutionally reasonable for law enforcement
officials to seize ‘effects’ that cannot support a justifiable
expectation of privacy without a warrant, based on probable cause
to believe they contain contraband.” Id. at 121-22, 104 S.Ct.
1652.
The High Court proceeded to examine whether the agent's
additional intrusion, occasioned by the field test of the white
powder, exceeded the scope of the private search. The Court
answered this inquiry in the negative, finding that the chemical
test that merely disclosed whether a substance is cocaine did not
compromise any legitimate interest in privacy as one cannot
legitimately have a privacy interest in cocaine, an illegal
substance. Id. at 123, 104 S.Ct. 1652. The Court concluded that
because only a trace amount of the material was involved and
because the property had been lawfully detained, “the ‘seizure’
could, at most, have only a de minimis impact on any protected
property interest.” Id. at 125, 104 S.Ct. 1652. Because the
safeguards of a warrant would only minimally advance Fourth
Amendment interests, the court concluded that the warrantless
“seizure” was reasonable. Id.
Shaffer, 209 A.3d at 969-971. Rejecting the appellant’s suggestion
otherwise, the Court iterated that there is ample support for the private search
doctrine in Pennsylvania jurisprudence and that "[t]he proscriptions of the
Fourth Amendment and Article I, § 8, do not apply to searches and seizures
conducted by private individuals." Id. (citing Commonwealth v. Harris, 817
A.2d 1033, 1047 (Pa. 2002)). The Court then held that “[p]ursuant
to Jacobsen, our inquiry is two-fold: (1) whether the facts presented
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establish that a private search was conducted; and, if so, (2) whether the
police actions exceeded the scope of the private search.” Id. at 972.
There are however two circumstances where the private actor doctrine
does not apply. “First, the doctrine does not apply if the ‘private actor’ who
conducted the search was actually an agent or instrument of the government
when the search was conducted.” United States v. Meals, 21 F.4th 903,
906 (5th Cir. 2021). Second, if without a warrant, the government
“exceeds the scope of the private actor’s original search and discovers new
evidence that it was not substantially certain to discover, the private search
doctrine does not apply, and the new evidence may be suppressed.”9 Id. at
906. Therefore, unless one of the above-mentioned circumstances is present,
“if a non-government entity violates a person’s privacy . . . and turns over the
evidence to the government, the evidence can be used to obtain warrants or
to prosecute.” Id. This is because the Fourth Amendment restrains the
government, not private citizens. Id.
“Whether a private party should be deemed an agent or instrument of
the Government for Fourth Amendment purposes necessarily turns on the
degree of the Government's participation in the private party’s activities, a
question that can only be resolved ‘in light of all the circumstances.’”
Skinner v. Railway Labor Executives' Ass’n, 489 U.S. 602, 614 (1989)
9 Appellant does not assert that either NCMEC or the PSP exceeded the scope
of the searches performed by Google and/or Facebook.
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(citations omitted). The principles that guide us in this regard were first
established by the Supreme Court of the United States in Lugar v.
Edmondson Oil Co., Inc, 457 U.S. 922 (1982), wherein the Supreme Court
“held that the conduct allegedly causing the deprivation must be fairly
attributable to the state.” Yim, 195 A.3d at 927 (citing Commonwealth v.
Price, 672 A.2d 280, 283-84 (Pa. 1996)). “[T]he critical factor is whether the
private individual, considering all the circumstances of the case, must be
regarded as having acted as an instrument or agent of the state[.]”
Commonwealth v. Cieri, 499 A.2d 317 (Pa. 1985) (cleaned up; citations
omitted). Mere cooperation with police, however, does not transform private
action into state action. Price, 672 A.2d at 283-284. Likewise, “the mere
fact that police and prosecutors use the results of an individual’s actions does
not, alone, elevate those actions to state action.” Id. “Where, however, the
relationship between the person committing wrongful acts and the State is
such that those acts can be viewed as emanating from the authority of the
State, a finding of state action is warranted.” Id.
Appellant’s challenge to the items seized by Google and Facebook and
subsequently received by NCMEC, requires that we first determine whether,
under the circumstances in this case, any of these entities were operating as
“private actors” or instead, as “agents” or “instruments” of the government
for Fourth Amendment purposes.
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Appellant sought suppression of all evidence obtained by Corporal
Brown based on the CyberTipline reports that were the product of the
warrantless searches of Appellant’s files by Google and Facebook and sent to
NCMEC, as well as all evidence obtained under the search warrant issued to
Corporal Brown under which Appellant claims his electronic devices were
seized as fruit of the poisonous tree. See Appellant’s Brief, at 13. Appellant
argues that Corporal Brown acknowledged in his search warrant application
that he received and reviewed information from NCMEC which NCMEC in turn
received from Facebook and from Appellant’s Internet service provider. See
id.
Appellant points to Corporal Brown’s testimony wherein he stated that
Google and Facebook identify and report child sexual abuse imagery in
accordance with the federal statutory definition of CSAM as referenced in 18
U.S.C.A. § 2256, and that when possible danger is observed, a summary is
sent to NCMEC CyberTipline. See id. at 14. Appellant sets forth that
electronic service providers (ESPs) such as Google and Facebook must report
any known CSAM violations to NCMEC, and that the failure to do so can be
met with substantial criminal penalties. See id. at 17.
The suppression record confirms that Corporal Brown identified
Appellant through the reports received from NCMEC based on information
provided by Google and Facebook. Appellant admits there is no dispute that
NCMEC provided inculpatory images/videos purportedly depicting unlawful
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CSAM to law enforcement through four CyberTipline reports. Appellant points
out that it was only after Corporeal Brown viewed images that were provided
to him by NCMEC that he then requested search warrants.
While acknowledging that neither the Fourth Amendment nor Article I,
§ 8 apply to actions by private actors, Appellant argues, relying for the most
part upon our unpublished decision in Commonwealth v. Baez, 2021 WL
5626366, (Pa. Super. filed Dec. 1, 2021) (unpublished memorandum), that
we must find that Google, Facebook and NCMEC were acting as agents of law
enforcement in this case.
In addition, Appellant cites federal statutory law to establish that
Google, Facebook and NCMEC are government actors. Appellant cites to 18
U.S.C.A. § 2258A,10 without identifying the portion(s) of the statutory text
relied upon, to establish that Google, Facebook and NCMEC must be deemed
government actors. He broadly contends that Facebook and Google must be
deemed government actors because by law they are mandated reporters and
can face criminal penalties for failing to comply with their reporting
obligations. Appellant is less specific as to NCMEC, but it is clear that his
contention is that NCMEC also is a government actor as it too is bound by
10 Section 2258A is a part of Chapter 110 of Part I of Title 18 of the United
States Code (18 U.S.C. §§ 2251–2260A), titled “Sexual Exploitation and Other Abuse of Children.”
- 19 -J-S11003-26
federal law to report CSAM to law enforcement. We discern the pertinent
provisions of § 2258A that underlie Appellant’s argument to be the following:
(a) Duty To Report.—
(1) In general.—
(A) Duty.— In order to reduce the proliferation of online
child sexual exploitation and to prevent the online
sexual exploitation of children, a provider[11]—
(i) shall, as soon as reasonably possible after
obtaining actual knowledge of any facts or
circumstances described in paragraph (2)(A)
[apparent violation], take the actions described in
subparagraph (B); and
(ii) may, after obtaining actual knowledge of any
facts or circumstances described in paragraph
(2)(B) [imminent violation], take the actions
described in subparagraph (B).
(B) Actions described.—The actions described in this
subparagraph are—
(i) providing to the CyberTipline of NCMEC, or any
successor to the CyberTipline operated by
NCMEC, the mailing address, telephone number,
facsimile number, electronic mailing address of,
and individual point of contact for, such provider;
and
(ii) making a report of such facts or circumstances
to the CyberTipline, or any successor to the
CyberTipline operated by NCMEC.
****
(e) Failure To Report.—A provider that knowingly and willfully fails
to make a report required under subsection (a)(1) shall be fined— ____________________________________________
11 A “provider” as used in this section “means an electronic communication
service provider or remote computing service.” 18 U.S.C.A. § 2258E(6).
- 20 -J-S11003-26
(1) in the case of an initial knowing and willful failure to make a
report, not more than $850,000 in the case of a provider with
not less than 100,000,000 monthly active users or $600,000
in the case of a provider with less than 100,000,000 monthly
active users; and
(2) in the case of any second or subsequent knowing and willful
failure to make a report, not more than $1,000,000 in the
case of a provider with not less than 100,000,000 monthly
active users or $850,000 in the case of a provider with less
than 100,000,000 monthly active users.
18 U.S.C.A. § 2558A(a), (e).
Although not discussed by Appellant, we observe, as the trial court did,
that § 2558A also provides:
(f) Protection of Privacy.—Nothing in this section shall be
construed to require a provider to—
(1) monitor any user, subscriber, or customer of that provider;
(2) monitor the content of any communication of any person
described in paragraph (1); or
(3) affirmatively search, screen, or scan for facts or
circumstances described in sections (a) and (b).
18 U.S.C.A. § 2258A(f).
Instantly, the trial court found that neither Facebook nor Google were
acting as government agents reasoning as follows:
Facebook and Google only were required to report to NCMEC
facts and circumstances known to them; they were not
required to supply any images or communications. They also
were not required to “affirmatively search” for contraband.
Therefore, it cannot be said that Facebook or Google were
acting as government agents or at the request of a government
entity. Instead, they were private actors that proactively
identified images they suspected were contraband and then
- 21 -J-S11003-26
voluntarily forwarded those images to NCMEC with their
reports.
Trial Court Opinion, 11/6/24, at 5. We agree.
Neither Facebook nor Google were required or requested by the
government to search Appellant’s account to locate CSAM. Section 2558A
only mandates that they report any CSAM they may find. The mechanisms
used to locate CSAM and the extent to which they conduct any search is left
to the discretion of both Google and Facebook. They exercise their rights to
regulate the content on their platforms and have put systems in place that
find and flag content that includes CSAM. At no point did the government
force them into the creation of this system. Nor does the record support any
finding that Google and Facebook conducted their searches of Appellant’s files
at the government’s urging or by any means of manipulation or coercion.
ESPs such as Google and Facebook are required under § 2558A to report
any known CSAM to NCMEC, who in turn is required to send the report(s) to
the local law enforcement agency (which it does through ICAC) where the
CSAM is either downloaded or uploaded. Critically, this same law specifically
disclaims any obligation by ESPs to monitor a) any user, subscriber, or
customer of that provider, b) the content of any communication, or c) to
affirmatively search, screen, or scan for CSAM. 18 Pa.C.S.A. § 2558(A)(f).
Thus, the statute effectively places any decision to search within the discretion
of the ESPs. See, e.g., United States v. Meals, 21 F.4th 903 (5th Cir. 2021)
(holding that nothing in the language under 2558A compelled or coerced ESPs
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to search actively for evidence of CSAM). Accordingly, neither Facebook nor
Google can be deemed government agents, even if the result of their searches
benefits the government. Id. at 908; United States v. Miller, 982 F.3d 412,
421-26 (6th Cir. 2020) (same); United States v. Ringland, 966 F.3d 731
(8th Cir. 2020) (same); United States v. Rosenow, 50 F.4th 715, 729-31
(9th Cir. 2022) (“federal law did not transform Yahoo’s and Facebook’s private
searches into governmental action.”); U.S. v. Cameron, 699 F.3d 621, 637-38 (1st Cir. 2012) (“We will not find that a private party has acted as an agent
of the government ‘simply because the government has a stake in the
outcome of the search.’”). Therefore, we too, like the trial court, conclude
that neither Google nor Facebook were acting as government agents such that
their searches ran afoul of the protections under the Fourth Amendment.
Instead, the record here only supports the conclusion that they were at all
times acting as “private actors.”
Separately, Appellant also contends that the items received by NCMEC
from Facebook and Google must be suppressed since NCMEC is a government
actor. Appellant does not develop this argument in his brief beyond referring
to the same statutory basis upon which he argued that Google and Facebook
were government actors - § 2558A.
NCMEC “is a private, non-profit 501(c)(3) organization created in 1984
by child advocates to serve as a national clearinghouse and resource center
for families, victims, private organizations, law enforcement, and the public
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on missing and sexually exploited child issues.” See N.T. Suppression
Hearing, 10/17/24, Exhibits 3-5 (CyberTipline Reports). Although NCMEC
began as a non-profit organization, Congress has since empowered NCMEC to
exercise significant law enforcement responsibility. The Administrator of the
Office of Juvenile Justice and Delinquency Prevention is statutorily obligated
to make an annual grant to NCMEC. 34 U.S.C.A. § 11293(b)(1). Monies from
the grant shall be used to “work with families, law enforcement agencies,
[ESPs], electronic payment service provides, technology companies,
nongovernmental organizations, and others on methods to reduce the
existence and distribution of online images and videos of sexually exploited
children by operating a CyberTipline[.]” 34 U.S.C.A. § 11293(b)(1)(K)(i). The
statute also provides that the grant money shall be used to “make reports
received through the CyberTipline available to the appropriate law
enforcement agency for its review and potential investigation[.]” 34 U.S.C.A.
§ 11293(b)(1)(K)(i)(II).
NCMEC’s CyberTipline functions illustrate the special law enforcement
duties and powers it enjoys. As explained, NCMEC is statutorily required to
maintain an electronic tipline for ESPs and others to report apparent CSAM.
ESPs must report any known CSAM to NCMEC via its CyberTipline, not to a
law enforcement agency. 18 U.S.C.A. § 2258A(a)(1). Once NCMEC receives
a report from an ESP, it is statutorily obligated to forward the report to federal,
state, and/or local law enforcement agencies. 18 U.S.C.A. § 2258A(c). Thus,
- 24 -J-S11003-26
NCMEC is statutorily authorized to receive and distribute CSAM, an action that
would normally subject private citizens to criminal prosecutions. 18 U.S.C.A.
§ 2258A(a) (mandating ESP’s report apparent CSAM to NCMEC’s
CyberTipline), (b)(4) (requiring visual depictions of apparent CSAM in the
report to NCMEC), (c) (NCMEC required to forward reports of apparent CSAM
to law enforcement). In addition to this authority, Congress has provided
NCMEC with statutory immunity for civil and criminal prosecution “arising from
the performance of the CyberTipline responsibilities or functions of NCMEC[.]”
18 U.S.C.A. § 2258D.
For present purposes, we need not resolve whether NCMEC was acting
as a government agent, since there is no suggestion in the suppression record
that NCMEC exceeded the scope of the private actor searches forwarded to it
by Google and/or Facebook. Meals, supra. So long as NCMEC, and
thereafter the police, did not exceed the searches conducted by the ESPs,
those searches could be used by the government without transgressing Fourth
Amendment protections. Accordingly, the trial court was correct to deny
suppression based upon the searches possessed by NCMEC and thereafter
forwarded to law enforcement.12
12 Some circuit courts that have analyzed whether NCMEC acts as an instrument or agent of the government have concluded that NCMEC does function as an instrument or agent of the government. See United States v. Guard, 152 F.4th 375, 387-89 (2d Cir. 2025); United States v. Ackerman, 831 F.3d 1292, 1295-1300 (10th Cir. 2016).
- 25 -J-S11003-26
Appellant’s reliance upon our unpublished decision in Baez to argue that
Facebook, Google and NCMEC were acting as agents of law enforcement is
unavailing. The case is clearly distinguishable.
In Baez, police officers responded to Baez's 911 call that someone had
stolen his backpack at a Burger King. Officers arrived, located the backpack,
and returned it to Baez. In the process, officers found that Baez had an open
warrant out of Florida and/or a Monroe County probation detainer lodged
against him. When Baez’s friend, Christine Monaco, arrived to give him a ride,
he gave her his backpack and requested she put it in her car. As it turned
out, Ms. Monaco was friends with one of the responding officers. She asked
the officer if she was allowed to put the backpack in her car. The officer told
her that “he might be concerned about what [the backpack] could contain,
explaining that Baez had previously been convicted for a firearm possession
charge.” Baez, 2021 WL 5626366 at *1. “He asked her, ‘Are you taking
possession of the bag? . . . Do you want to check what's in it before you take
possession of it?’” Id. “Ms. Monaco recalled him asking if she minded
searching the backpack ‘for her own protection, because, if she got pulled
over, and there's something in the bag, it's going to be her responsibility.’”
Id. Reaching in the backpack, she immediately felt a handgun and gave the
bag to the police. The officers then searched through the contents, which
included a clear baggie of suspected heroin.
- 26 -J-S11003-26
The Commonwealth charged Baez with carrying a firearm without a
license, possessing a firearm with an altered serial number, and various drug
offenses. Baez subsequently moved to suppress the evidence against him
upon the basis that when Ms. Monaco searched inside his backpack, she was
acting as an agent of the state. The suppression court found that the
Commonwealth did not prove Ms. Monaco acted entirely as a private
individual. The court observed that Ms. Monaco asked for the officer's
permission to take the backpack from the scene. From this, the suppression
court reasonably inferred that Ms. Monaco believed herself to be under some
amount of governmental control in this situation and that the officer created
the situation that induced Ms. Monaco to search the backpack. Suppression
was granted and we affirmed.
Notwithstanding the officer’s suggested intent to protect Ms. Monaco
from possible negative ramifications of transporting the backpack, on appeal,
we held that the officer's actions directly caused Ms. Monaco to search the
backpack, something the officer could not do without a search warrant. Id.
at *5. We found that specific features of the officer's conduct combined to
convince us that the officer did more than adopt a passive position toward the
underlying private conduct. Id.
The facts in Baez stand in stark contrast to those presently before us.
Baez was illustrative of a situation where police manipulated and encouraged
a private party to conduct a warrantless search. They were an active part of
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the search coming into being. Here, the same cannot be said with respect to
Facebook and Google whose searches were the product of their own policies
and who were under no compulsion or urging by the police to search
Appellant’s internet files for CSAM.13 Baez offers no quarter to Appellant. The
trial court correctly denied suppression.
2. Hearsay; the Business Records Exception
In his last issue, Appellant contends the trial court committed reversible
error in admitting a NCMEC CyberTipline report14, Commonwealth Exhibit 2,
into evidence through the testimony of Corporal Brown under the business
records exception to hearsay under Pa.R.E. 803(6).15 He seeks a new trial
based upon this evidentiary error.
13 We need not distinguish Baez from Appellant’s claim that NCMEC was acting
as a government agent, since we have concluded that Google and Facebook were not acting as government agents and NCMEC, even if acting as a government agent, did not exceed the scope of those private actor searches.
14 As we discuss, infra, although multiple CyberTipline reports were admitted
during the suppression hearing, only CyberTipline report 162402735, marked as Commonwealth Exhibit 2, was used and admitted into evidence during trial. Therefore, we limit our discussion on this hearsay issue to Commonwealth Exhibit 2.
15 This exception to the rule against hearsay is codified at 42 Pa.C.S.A. § 6108,
that provides as follows:
§ 6108. Business records.
(a) Short title of section.--This section shall be known
and may be cited as the "Uniform Business Records as
Evidence Act."
(Footnote Continued Next Page)
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At trial, the Commonwealth, over objection, was permitted to introduce
the CyberTipline report received from NCMEC through the testimony of
Corporal Brown. The defense objected on the basis that Corporal Brown was
not a “qualified” witness to admit the CyberTipline report as a business record.
Appellant argues Corporal Brown was not a “qualified” witness to admit the
record, since he is not employed by NCMEC, there was no testimony presented
that he is the NCMEC custodian of records, or that he had personal knowledge
of NCMEC’s internal procedures with respect to recordkeeping. See
Appellant’s Brief, at 18-19. The trial court overruled the objection, explaining
more fully in its 1925(a) opinion, that the records were admitted under the
business records exception because:
Here, Corporal Brown testified as to his complete familiarity with
[CyberTipline] reports. Corporal Brown testified that these
reports are received and used on a daily basis from NCMEC and
ICAC, and that through his employment with the Computer Crimes
Unit of the Pennsylvania State Police he has received twenty to
thirty thousand of such [CyberTipline] reports. He relies on the
information from the [reports] to conduct his investigation.
Through this questioning, the trial court was satisfied that
(b) General rule.--A record of an act, condition or event
shall, insofar as relevant, be competent evidence if the
custodian or other qualified witness testifies to its identity
and the mode of its preparation, and if it was made in the
regular course of business at or near the time of the act,
condition or event, and if, in the opinion of the tribunal, the
sources of information, method and time of preparation
were such as to justify its admission.
(c) Definition.--As used in this section "business" includes
every kind of business, profession, occupation, calling, or
operation of institutions whether carried on for profit or not.
- 29 -J-S11003-26
Corporal Brown relies on this business record from NCMEC or ICAC
on a regular basis in conducting his investigations into [CSAM].
Trial Court Opinion, 6/11/25, at 5.
The admission or exclusion of evidence is within the sound discretion of
the trial court. “[I]n reviewing a challenge to the admissibility of evidence,
we will only reverse a ruling by a trial court upon a showing that it abused its
discretion or committed an error of law.” McManamon v. Washko, 906 A.2d
1259, 1268-69 (Pa. Super. 2006) (citation omitted). Thus, our standard of
review is very narrow. “To constitute reversible error, an evidentiary ruling
must not only be erroneous, but also harmful or prejudicial to the complaining
party.” Id.
Herein, we are asked to review the trial court’s admission of hearsay
evidence. Hearsay is an out-of-court statement offered for the truth of the
matter asserted and is generally inadmissible unless it falls within a delineated
exception. See Pa.R.E. 801, 802. Records of a regularly conducted business
activity are one such exception if admitted through a properly qualified
witness. Pa.R.E. 803(6), the business records exception to the rule against
hearsay, provides as follows:
(6) Records of a Regularly Conducted Activity. A record
(which includes a memorandum, report, or data compilation in any
form) of an act, event, or condition if:
(A) the record was made at or near the time by—or from
information transmitted by—someone with knowledge;
- 30 -J-S11003-26
(B) the record was kept in the course of a regularly conducted
activity of a “business”, which term includes business,
institution, association, profession, occupation, and calling
of every kind, whether or not conducted for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification
that complies with Rule 902(11) or (12) or with a statute
permitting certification; and
(E) the opponent does not show that the source of the
information or other circumstances indicate a lack of
trustworthiness.
Pa.R.E. 803(6). Central to laying a proper foundation for the admission of
business records under this exception is that a custodian or other qualified
witness testify to the identity of the records, the mode of their preparation,
and if they were made in the regular course of business at or near the time of
the act, condition or event. 42 Pa.C.S.A. § 6108.
However, even though a proper records custodian may adequately lay
the foundation to admit business records as an exception to hearsay,
admitting business records under this exception may not suffice to admit other
hearsay within the records. “An out-of-court declaration containing another
out-of-court declaration is double hearsay.” Commonwealth v. Laich, 777
A.2d 1057, 1060 (Pa. 2001). For double hearsay to be admissible, “the
reliability and trustworthiness of each declarant must be independently
established.” Id. “This requirement is satisfied when each statement comes
within an exception to the hearsay rule.” Id. When attempting to admit
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records that contain multiple layers of hearsay under the business records
exception, each layer must qualify as an exception to the rule against hearsay
for the ultimate records to be admitted. Id.
Before further addressing this hearsay issue, we find that two aspects
of the record deserve mention before proceeding to the merits of this issue.
First, it is not at all clear from a review of the record and the briefs if
the Commonwealth, through the testimony of Corporal Brown, was attempting
to admit the CyberTipline report as a business record of the PSP, or as a
business record of NCMEC. In either event, as we discuss, infra, Corporal
Brown’s testimony was not adequate to admit Exhibit 2 as either a PSP or
NCMEC business record.
Second, at trial, unlike during the pre-trial suppression hearing, only a
single CyberTipline report, Exhibit 2,16 was introduced into evidence.17 Exhibit
2 is a 16-page PSP “General Offense Report” that contains the CyberTipline
report from Facebook. The cover page on the PSP report contains an
“Executive Summary” that provides a brief overview of information contained
in the CyberTipline report. The CyberTipline report is broken down into four
16 From our review of the certified record, trial Exhibit 2 corresponds to Exhibit
4 from the suppression hearing.
17 At the suppression hearing, a total of six exhibits were introduced into evidence, three of which (Exhibits 3, 4, and 5) contained four (4) CyberTipline reports. Exhibits 3 and 5 identified three Google CyberTipline reports (Exhibit 3 contained two reports). Exhibit 4 identified Facebook as the CyberTipline reporter.
- 32 -J-S11003-26
sections, A, B, C and D. Section “A” contains the original information received
from Facebook, except for the “Incident Type” and “Incident Time” identified
in that section. It identifies Appellant as the suspect, as well as “Xavier
Campeau” as the recipient. Also identified are 11 uploaded files. The section
concludes with a disclosure that all information in that section was
electronically submitted to the CyberTipline by the reporting person, the
NCMEC center or the reporting ESP. The information received is from the
original submission. All information, other than the incident type and incident
time, is voluntary and undertaken at the initiative of the reporting person or
reporting ESP.
Section “B” contains “Automated Information Added by NCMEC
Systems.” When the reporting party voluntarily reports an IP address or
phone number, NCMEC will geographically resolve the IP address or number
via publicly available online queries. The data is approximate and may not
display a user's exact location. The section also contains identification of a
categorization system used by various ESPs that identify the type of CSAM
material contained within the uploaded files. There finally is a “deconfliction”
provision whereby NCMEC reports on automated queries on reports from
section “A” to provide a list of possibly related results at the time the report
was generated. The reported information attempts to match information seen
in additional CyberTipline reports.
- 33 -J-S11003-26
Section “C” is “Additional Information Provided by NCMEC.” The section
contains information collected by NCMEC staff based upon information
electronically submitted by the reporting person, NCMEC call center or
reporting ESP. The section may contain a variety of additional information,
including data gathered from queries on publicly available, open-source
websites. Queries conducted by NCMEC staff are documented and any query
results are saved to the electronic filing system when possible. The
CyberTipline cannot confirm the accuracy of information found in public
records or whether the results are affiliated with any parties relating to the
report. Section “C” to Exhibit 2 states that NCMEC did not view the 11
uploaded files and therefore has no information containing the content of the
files other than the information voluntarily provided by the reporting ESP
noted in the report.
As is plainly obvious, Exhibit 2 contains multiple layers of hearsay. The
PSP record, even assuming it could be admitted as a business record, contains
hearsay from NCMEC which in turn reported on hearsay supplied by Facebook.
Exhibit 2 also identifies information from other sources that arguably might
constitute other hearsay unless proper foundations are laid for their
admission.18 Some of the information also is from public sources that cannot
be verified and which may constitute inadmissible hearsay as well.
18 As stated earlier, NCMEC forwards its CyberTipline reports to police through
ICAC. None of the parties or the trial court have commented on whether ICAC (Footnote Continued Next Page)
- 34 -J-S11003-26
If Corporal Brown was attempting to admit Exhibit 2 as a PSP record, he
not only had to lay the proper foundation for admission of the PSP record, but
he, if he was a qualified witness, also had to lay proper foundations for the
NCMEC and ESP information contained within Exhibit 2 to be admitted under
Pa.R.E. 802(6). If Corporal Brown was attempting to admit the CyberTipline
report as a business record of NCMEC, in addition to establishing that he could
qualify as a proper witness to do so, he still would have had to lay a proper
foundation to admit the hearsay Facebook records within the NCMEC report to
satisfy Pa.R.E. 802(6). At a minimum, Exhibit 2 contained as little as two and
as many as three (and perhaps more) layers of hearsay, with each having to
be properly authenticated under the business records exception for the entire
exhibit to come into evidence.
While admittedly, as recognized by the trial court, Corporal Brown was
very familiar with NCMEC CyberTipline reports and relies upon them in
conducting CSAM investigations, this is not testimony that meets the criteria
to admit a business record(s) under the hearsay exception under Rule 802(6).
As stated, the rule requires that the custodian of the record or another
qualified witness, testify that the record was made at or near the time the
information was transmitted by someone with knowledge, that it was kept in
the course of a regularly conducted activity of a business, and that making
factors into this hearsay analysis. Neither do we, limiting ourselves to the arguments presented.
- 35 -J-S11003-26
the record was a regular practice of the business. No foundation was laid by
the Commonwealth to qualify Corporal Brown as a proper witness to establish
the bona fides of Exhibit 2 as a PSP business record, nonetheless as a qualified
witness to testify as to either NCMEC’s or Facebook’s records.
Corporal Brown was not employed by NCMEC and has no first-hand
familiarity with NCMEC’s policies and practices with respect to its business
records. The mere fact that he uses and relies upon NCMEC records in his
investigations does not qualify him as a custodian or other qualified person to
lay the foundation to admit NCMEC’s business records into evidence,
nonetheless those of the ESPs. In fact, no attempt was made to have Corporal
Brown testify as a qualifying witness to admit the information reported by
Facebook that was a part of the NCMEC CyberTipline report. Any attempt to
admit Exhibit 2 had to be done through a qualified person(s) to provide the
proper foundation to admit each level of hearsay. While a certification under
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Pa.R.E. 902(11)19 and (13)20 may be used to self-authenticate21 a record of
a regularly conducted business or those of an electronic process or system,
respectively, any attempt to satisfy a hearsay exception still must be made
independently. See Comment to Pa.R.E. 902. It therefore was error for the
trial court to admit Exhibit 2 as a business record through the testimony of
Corporal Brown.22
19 Pa.R.E. 902 allows for the admission of evidence that is self-authenticating
and provides that:
The original or a copy of a domestic record that meets the
requirements of Rule 803(6)(A)-(C), as shown by a certification
of the custodian or another qualified person that complies with
Pa.R.C[iv].P. No. 76. Before the trial or hearing, the proponent
must give an adverse party reasonable written notice of the
intent to offer the record – and must make the record and
certification available for inspection – so that the party has a
fair opportunity to challenge them.
Pa.R.E. 902(11).
20 Pa.R.E. 902(13) speaks to records generated by an electronic process or
system and provides:
A record generated by an electronic process or system that
produces an accurate result, as shown by a certification of a
qualified person that complies with the certification
requirements of Rule 902(11) or (12). The proponent must
also meet the notice requirements of Rule 902(11).
21 “[T]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it to be.” Pa.R.E. 901.
22 The realities of today’s modern world have long passed beyond the days of
when a single shopkeeper could testify to its business records without concern as to the incorporation of third-party records as a part of their own. Today, it (Footnote Continued Next Page)
- 37 -J-S11003-26
Having determined that it was error for the trial court to admit Exhibit
2 under the business records exception to the prohibition against hearsay, we
now turn our attention to examining whether the error was harmless and if
so, whether Appellant is entitled to a new trial as requested.
“A new trial is mandated where the error is not harmless beyond a
reasonable doubt.” Koch, 39 A.3d at 1006. Harmless error exists 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
is not uncommon for a business to keep and rely upon the records of another business as a part of their own. In Bayview Loan Servicing LLC v. Wicker, 206 A.3d 474 (Pa. 2019), our Supreme Court considered the business records exception in the context of the increasingly common situation where a loan is originated by one company but is later acquired by a separate company. The question was whether the records containing information originally recorded by the first company could be authenticated by an employee of the current holder of the loan or whether the litigant had to provide an employee of each of the prior holders of the loan or a certification of the records under Rule 902(11) or (12). Unlike the federal courts which have adopted a "rule of incorporation" which provides that the record a business takes custody of is "made" by the business, see, Commonwealth Financial Systems, Inc. v. Smith, 15 A. 3d 492, 496 (Pa. Super. 2011), our Supreme Court has declined to adopt any bright line rule either forbidding the authentication of documents recorded by a third party or endorsing an automatic incorporation doctrine into the business records exception. Instead, it is the Court’s position to continue to allow our trial courts to utilize their broad discretion in evidentiary matters by applying the business record exception of Rule 803(6) to determine if a witness "can provide sufficient information relating to the preparation and maintenance of the records to justify a presumption of trustworthiness" subject to the opponent rebutting the evidence with any other circumstances indicating a lack of trustworthiness. Bayview Loan, 206 A.3d at 486.
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evidence; or (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. Robinson, 721 A.2d 344, 350 (Pa. 1999). Whenever
there is a “reasonable possibility” that an error “could have contributed to the
verdict,” the error is not harmless. Commonwealth v. Passmore, 857 A.2d
697, 711 (Pa. Super. 2004).
As to Appellant’s convictions on Counts 1-20 (possession of CSAM), we
conclude that the admission of Exhibit 2 was not prejudicial error. This is
because Corporal Brown, upon execution of his search warrant, searched
Appellant’s residence and found numerous electronic devices23 belonging to
Appellant.24 After the items were seized, Corporal Brown examined the
devices for CSAM. He testified that he found CSAM within the Samsung and
23 See Commonwealth’s Exhibit 1 – white cell phone case, tablet, black and
red cell phone case, gray TCL Cricket phone, and Samsung Android phone.
24 When asked by the trial court if Appellant was challenging the search warrant, Appellant replied only to the extent it was based on the illegally seized information in violation of the constitution. N.T. Suppression, 11/17/24, at 15. Appellant’s argument makes clear the focus of his suppression motion was not upon any hearsay supporting the search warrant, but rather a claim that the ESPs and NCMEC were at all times acting as government agents and not as private actors. Id. at 5-6. In any event, it is settled that a warrant may be based upon hearsay, a different issue from the admissibility of evidence at trial. See Commonwealth v. Lyons, 79 A.3d 1053, 1064 (Pa. 2013) (probable cause supporting a search warrant may be based upon a totality of the circumstances set forth in the affidavit of probable cause, including the reliability and veracity of hearsay statements included therein).
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TCL cell phones; however, he was only able to extract data from the Samsung
phone. Images recovered from the Samsung phone were shown to the jury.
This evidence was independent of Exhibit 2. With the electronic evidence in
hand, the Commonwealth did not need to rely upon Exhibit 2 for the
possession convictions.
We also observe from our examination of Exhibit 2 that the exhibit does
not contain any images but merely identifies computer files which were
flagged by an algorithm as containing CSAM. In comparison to the images
shown to the jury from Appellant’s devices, the electronic references found
within Exhibit 2 would seem to carry much less weight than the actual images
shown to the jury. In light of these considerations, we conclude that the
improper admission of Exhibit 2 did not prejudice Appellant and/or the exhibit,
at best, was cumulative of other untainted evidence with respect to Counts 1-20.
Likewise, we conclude that the admission of Exhibit 2 did not prejudice
Appellant’s conviction under Count 22 – criminal use of a communication
facility. Appellant’s use of his phone(s) to upload and/or to download CSAM
was discovered by police after searching his cell phones. The conviction for
this crime, at least for the underlying felony for possession, depended upon
police finding CSAM on Appellant’s electronic devices. The evidence of CSAM
on Appellant’s phones was sufficient to convict on this single count of the
criminal use of a communication facility. Evidence to prove this offense was
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not dependent on any evidence found within Exhibit 2. There was no prejudice
that would warrant a new trial on Count 22.
The same cannot be said for the single conviction at Count 21
(dissemination). The improper admission of Exhibit 2 was the only evidence
relied upon to support the conviction for dissemination of CSAM.25 When
asked during trial, Corporal Brown testified that the CyberTipline report in
Exhibit 2 was the only evidence to support dissemination. N.T. Trial, 12/3/24,
at 68. As no other evidence was presented to support a conviction on this
count, the introduction of Exhibit 2 into evidence clearly caused prejudice to
Appellant. This prejudice constitutes reversible error. Therefore, a new trial
for Count 21 is warranted.
Accordingly, we affirm the convictions at Counts 1-20 and 22, reverse
the conviction at Count 21, vacate the judgment of sentence, and remand for
resentencing on Counts 1-20, and 22, and grant a new trial on Count 21.
Judgment of sentence vacated. Conviction at Count 21 reversed,
remaining convictions affirmed. Remand for resentencing on Counts 1-20,
and 22. A new trial is granted as to Count 21. Jurisdiction relinquished.
25 Exhibit 2 was improperly admitted on the basis of hearsay where the Commonwealth attempted to use the exhibit to establish the truth of the information in that exhibit that Appellant distributed CSAM. While this exhibit may have been introduced to explain the course of the police investigation, admitting the exhibit on that basis could not be used as substantive evidence to prove the offense. See Commonwealth v. Palsa, 555 A.2d 808 (Pa. 1989) (evidence admitted explaining the course of police conduct cannot be considered as substantive evidence of guilt).
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DATE: 9/21/2026
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