J-S11045-15

2015 PA Super 133

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

KENNETH F. SODOMSKY

Appellee No. 870 MDA 2014

Appeal from the Order April 25, 2014

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0001025-2005

BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

DISSENTING OPINION BY OTT, J.: FILED JUNE 05, 2015

I must respectfully dissent for two reasons. First, I conclude the 

suppression court abused its discretion when it re-opened Sodomsky’s 

suppression hearing. 

Pennsylvania Rule of Criminal Procedure 581 “is designed to provide 

one single procedure for the suppression of evidence alleged to have been 

obtained in violation of the defendant’s rights.” Pa.R.Crim.P. 581, Comment. 

However, the Rule permits the filing of a supplemental motion when “the 

opportunity did not previously exist, or the interests of justice otherwise 

require[.]” Pa.R.Crim.P. 581(B). 

In December of 2013, after this Court reversed the trial court’s 

second order suppressing the evidence recovered from Sodomsky’s 

computer, and both the Pennsylvania Supreme Court and the United States 

Supreme Court declined to accept his appeal for the second time, Sodomsky 

petitioned the trial court to re-open his suppression hearing for a third 

time. He asserted that the United States Supreme Court’s decision in 
J-S11045-15

- 2 -

Jones, supra, constituted a “clear change of law[.]” Petition to Re-Open 

Suppression Hearing Based on Intervening Change in Law, 12/16/2013, at 

4, 5. The trial court agreed, and concluded: 

Jones may not be entirely new law, but it reaffirmed that the 

government’s physical intrusion on [Sodomsky’s] “effect” for the 

purpose of obtaining information constitutes a “search” and that 

this type of encroachment on an area enumerated in the Fourth 

Amendment would have been considered a search within the 

meaning of the Amendment at the time it was adopted. [Jones] 

is new law in the sense that the expectation of privacy standard 

is no longer the exclusive test to determine if a search violates 

the Fourth Amendment. Thus, this approach is the equivalent to 

new law because it had not been applied since the expectation of 

privacy standard was enunciated in Katz v. United States, 389 

U.S. 347 (1967) and was not applied or addressed by the 

Superior Court in the case sub judice. 

Trial Court Opinion, 7/29/2014, at 4. 

On appeal, the Commonwealth argued Jones was decided before this 

Court’s prior decision, and, therefore, impliedly rejected by this Court. The 

Majority determined (1) the suppression court did not have the opportunity 

to apply Jones since it was decided after the appeal was filed from the 

second suppression order, and (2) this Court was not barred by the “law of 

the case” doctrine from applying Jones since it represented “an intervening 

change of law.” Majority Memorandum at 9. While I agree with the 

Majority’s first conclusion, I take issue with its second. 

In my view, Jones did not involve an intervening change in the law 

that would justify the re-opening of Sodomsky’s suppression hearing. 

Rather, the Jones Court, in determining the government’s warrantless 

attachment of a GPS device to the defendant’s vehicle and subsequent use 

of that device to monitor the vehicle’s movement, constituted a search under 
J-S11045-15

- 3 -

the Fourth Amendment, reaffirmed the Fourth Amendment’s continued 

long standing protection of a person’s “effects.”1 

Preliminarily, I note that the facts in Jones are not analogous to 

those presented in the case sub judice. In Jones, “[t]he Government 

physically occupied private property” by installing a GPS device on the 

defendant’s vehicle for the explicit purpose of monitoring the vehicle’s 

movements. Jones, supra, 132 S.Ct. at 949. Here, conversely, the police 

viewed Sodomsky’s computer files, after Sodomsky left his computer at a 

Circuit City store for service (abandoning his privacy interests in the 

property for a limited time) and, during the course of that service visit, a 

clerk happened upon the files in question. Although the police eventually 

seized Sodomsky’s computer, it was only after they had probable cause to 

do so upon viewing the pornographic video clip. 

Furthermore, the Jones Court clearly explained that it was not 

creating new law. Rather, the Court stated: “We have no doubt that such a 

____________________________________________

1 The Jones decision was authored by Justice Scalia, joined by Chief Justice 

Roberts, Justice Kennedy, Justice Thomas and Justice Sotomayor. Justice 

Sotomayor also authored a concurring opinion in which she expressed 

concern with the current state of the law concerning the reasonable 

expectation of privacy in our digital information society. However, she noted 

“[r]esolution of these difficult questions in this case is unnecessary ... 

because the Government’s physical intrusion on Jones’ Jeep supplies a 

narrower basis for decision.” Jones, 132 S.Ct. 957 (J. Sotomayor, 

concurring). Finally, Justice Alito, joined by Justices Ginsburg, Breyer and 

Kagan, concurred in the judgment. Justice Alito opined that the decision 

should be based upon whether the defendant’s “reasonable expectations of 

privacy were violated by the long-term monitoring of the movements of the 

vehicle he drove.” Id. at 958 (J. Alito, concurring in judgment).
J-S11045-15

- 4 -

physical intrusion[, as occurred here,] would have been considered a ‘search’ 

within the meaning of the Fourth Amendment when it was adopted.” Jones, 

supra, 132 S.Ct. at 949. Although the Court recognized that after its 

decision in Katz, the focus of Fourth Amendment jurisprudence shifted to a 

defendant’s reasonable expectation of privacy, it explained that Katz “did 

not narrow the Fourth’s Amendment’s scope.” Id. at 951. Rather, the Katz

decision expanded Fourth Amendment protections without “withdraw[ing] 

any of the protection which the Amendment extends to the home.” Id., 

quoting Alderman v. United States, 394 U.S. 165, 180 (1969). 

The Jones Court relied upon the Supreme Court’s decision in Soldal 

v. Cook County, 506 U.S. 56 (1992), in which the Court “unanimously 

rejected the argument that although a seizure had occurred in a technical 

sense when a trailer home was forcibly removed, no Fourth Amendment 

violation occurred because law enforcement had not invade[d] the

[individuals’] privacy.” Jones, supra, 132 S.Ct. at 951 (internal 

punctuation omitted), citing Soldal, supra. In distinguishing Katz and its 

progeny, the Soldal Court opined:

[T]he message of those cases is that property rights are not 

the sole measure of Fourth Amendment violations. ... 

There was no suggestion that this shift in emphasis [from the 

protection of property to the protection of privacy privacy] had 

snuffed out the previously recognized protection for property 

under the Fourth Amendment. Katz, in declaring violative of the 

Fourth Amendment the unwarranted overhearing of a telephone 

booth conversation, effectively ended any lingering notions that 

the protection of privacy depended on trespass into a protected 

area. In the course of its decision, the Katz Court stated that 

the Fourth Amendment can neither be translated into a provision 

dealing with constitutionally protected areas nor into a general 

constitutional right to privacy. The Amendment, the Court said, 

protects individual privacy against certain kinds of governmental 
J-S11045-15

- 5 -

intrusion, “but its protections go further, and often have 

nothing to do with privacy at all.” 389 U.S., at 350, 88 S.Ct., 

at 510.

Soldal, supra, 506 U.S. at 64 (emphasis supplied).

Accordingly, since I find Jones did not constitute an intervening 

change in the law, I would conclude the trial court abused its discretion in 

re-opening Sodomsky’s suppression hearing.2

Second, I find that the Majority disregarded this Court’s prior decision 

when it engaged in a plain view analysis.

It is axiomatic that “[t]he Fourth Amendment prohibits only 

unreasonable searches” and seizures. Grady v. North Carolina, 135 S. 

____________________________________________

2

I recognize that Rule 581 permits a defendant to file a supplemental 

suppression motion when “the opportunity did not previously exist or the 

interests of justice otherwise require.” Pa.R.Crim.P. 581(B) (emphasis 

supplied). However, traditionally, Pennsylvania courts have applied the 

“interests of justice” exception “to excuse a party’s tardy presentation of a 

suppression motion.” Commonwealth v. Johonoson, 844 A.2d 556, 561 

(2004) (emphasis supplied), appeal denied, 863 A.2d 1144 (Pa. 2004). See 

id. (finding no abuse of discretion on the part of the trial court in denying 

tardy supplemental suppression motion when defendant knew facts 

surrounding the stop at time he filed his first motion; in initial motion he 

argued his statement to trooper was not voluntary, but in supplemental 

motion he claimed entire encounter was an illegal investigative detention). 

But see Commonwealth v. Long, 753 A.2d 272 (finding trial court did not 

abuse its discretion in considering defendant’s untimely, oral, supplemental 

suppression motion presented at the close of the Commonwealth’s case 

because motion challenged legitimacy of traffic stop based on videotape 

from inside police cruiser, and videotape was not shown to the defense until 

the first day of trial). Here, Sodomsky did not seek to file a “tardy” 

suppression motion because he uncovered new evidence, rather he sought 

to file a supplemental motion based upon an intervening change in the law. 

Because I conclude the Jones decision did not create “new law,” I would 

also find the “interests of justice” do not require re-opening his suppression 

hearing.
J-S11045-15

- 6 -

Ct. 1368, 1371 (U.S. 2015) (emphasis supplied). Therefore, even if the 

search and seizure of Sodomsky’s computer implicated Fourth Amendment 

protection under Jones, it would not justify suppression of the evidence 

unless the actions of the government were unreasonable. Moreover, while 

the Majority correctly states that “a warrantless search or seizure is 

presumptively unreasonable[,]” it recognizes that there are a few “clearly 

delineated exceptions” to the warrant requirement, namely, the “plain view” 

doctrine. Majority Memorandum at 16 (emphasis supplied), citing

Commownealth v. Williams, 73 A.3d 609, 614 (Pa. Super. 2013), appeal 

denied, 87 A.3d 320 (Pa. 2014).

However, the Majority then concludes that the plain view exception is 

not applicable in the present case because “the suspect video file was not in 

‘plain view’ when Officer Phillips arrived at the scene, nor was its criminal 

nature readily apparent.” Id. at 17. In doing so, the Majority ignores the 

fact that a panel of this Court, in the appeal from the first order suppressing 

the evidence in this case, determined that the plain view exception to the 

warrant requirement applied under the facts of this case. In the original 

Sodomsky appeal, this Court stated:

In the present case, police did not violate the Fourth Amendment 

in arriving next to the computer. Circuit City, which owned the 

premises, had granted them permission to enter the repair area 

though their on-site employees. Accord McCullum, [602 A.2d 

313 (Pa. 1992)] (where police had permission of tenant to be in 

apartment, they had lawful vantage point from which to view 

incriminating evidence); cf. Commonwealth v. English, 839 

A.2d 1136 (Pa. Super.2003) (police had plain view of marijuana 

growing on defendant’s porch but violated Fourth Amendment by 

entering onto premises without warrant, consent, or exigent 

circumstances; plain view doctrine therefore did not apply). The 
J-S11045-15

- 7 -

videos were not obscured in that they could be seen readily from 

that location. 

We also conclude that the incriminating nature of the video files 

was immediately apparent. [Sodomsky] suggests that it was 

unclear whether the videos depicted child pornography because 

police could not ascertain the age of the naked male, whose face 

was not revealed, from the portion of the video that they 

viewed. We disagree. [Sodomsky] ignores the titles assigned to 

the videos on his computer. Mr. Richert stated that the titles 

listed a masculine name, an age of either thirteen years old or 

fourteen years, and “different types of sexual acts.” N.T. 

Suppression Hearing, 9/28/05, at 24. The video titles, together 

with the clip of a naked male with a hand reaching for the penis, 

made it “readily apparent” that the videos were of illegal child 

pornography. Finally, police had the lawful right to access the 

videos because, as analyzed extensively above, [Sodomsky] had 

abandoned any reasonable expectation of privacy in them.

Commonwealth v. Sodomsky, 939 A.2d 363, 370 (Pa. Super. 2007). 

Under the “law of the case” doctrine, and based on this Court’s prior 

decision, I would decline to revisit the applicability of the plain view doctrine 

in this appeal. See Commonwealth v. McCandless, 880 A.2d 1262, 1268 

(Pa. Super. 2005) (“The doctrine of ‘the law of the case’ is that, when an 

appellate court has considered and decided a question submitted to it upon 

appeal, it will not, upon a subsequent appeal on another phase of the case, 

reverse its previous ruling even though convinced it was erroneous.”), 

appeal dismissed as improvidently granted, 933 A.2d 650 (Pa. 2007).3

____________________________________________

3

I recognize there are exceptions to the applicability of the law of the case 

doctrine, such as, where there is “an intervening change in the law, a 

substantial change in the facts, or if the prior ruling was ‘clearly erroneous’ 

and ‘would create a manifest injustice if followed.’” McCandless, supra, 

880 A.2d at 1268 (citation omitted). However, none of those exceptions are 

applicable here. It is important to note that the Jones decision, while 

opining that a search of a person’s “effects” may violate the Fourth 

(Footnote Continued Next Page)
J-S11045-15

- 8 -

Therefore, because I conclude the trial court abused its discretion in 

re-opening Sodomsky’s suppression hearing, I am compelled to dissent. 

(Footnote Continued) _______________________

Amendment even though the person may have no reasonable expectation of 

privacy in that “effect,” did not consider whether the “search” of Jones’s car 

was “reasonable” because the issue was waived by the Commonwealth. 

Jones, supra, 132 S.Ct. at 954. Therefore, even if I found the Jones

decision to be applicable and relevant, it would not necessarily compel a 

different result under the facts of this case.