J-A09040-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

ADAM ZYDNEY

Appellee

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 927 MDA 2016

Appeal from the Order Entered May 4, 2016

In the Court of Common Pleas of Centre County 

Criminal Division at No(s): CP-14-CR-0001371-2015, 

CP-14-CR-0001810-2015

BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 27, 2017

Appellant, the Commonwealth of Pennsylvania, appeals from the order 

entered in the Centre County Court of Common Pleas, which suppressed the 

statements which Appellee, Adam Zydney, made to police during a noncustodial interview.1

 We affirm. 

The relevant facts and procedural history of this case are as follows. 

On July 31, 2015, police executed a search warrant at Appellee’s residence 

____________________________________________

1

The record indicates the court issued notice of its May 4, 2016 order to the 

parties on May 5, 2016. The Commonwealth had until June 5, 2016, to file a 

notice of appeal. June 5, 2016, however, fell on a Sunday. Accordingly, the 

Commonwealth timely filed its notice of appeal on Monday, June 6, 2016. 

See Pa.R.A.P. 108(a)(1) (explaining that in computing any period of time 

under these rules involving date of entry of order, day of entry shall be day 

clerk of court mails or delivers copies of order to parties). 
J-A09040-17

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for indicia of possession and distribution of child pornography. During the 

search, police confiscated, inter alia, Appellee’s laptop. On August 4, 2015, 

Appellee and his attorney voluntarily met with Detective Martin, who 

interviewed Appellee. Detective Martin informed Appellee the interview was 

non-custodial and Appellee was free to leave at any time. Detective Martin 

explained that he assumed Appellee understood his rights because counsel 

was present; Appellee indicated he did. Detective Martin advised Appellee 

that if Appellee cooperated and explained what authorities would discover on 

Appellee’s laptop, Detective Martin would charge Appellee with only one 

count of possession of child pornography. Detective Martin also said he 

could not “ultimately determine what would happen with the final disposition 

of the case.” (N.T. Suppression Hearing, 1/22/16, at 30). Subsequently, 

Appellee told Detective Martin there was child pornography on his laptop. 

The Commonwealth charged Appellee on August 31, 2015, with one 

count of possession of child pornography at No. 1371-2015. The 

Commonwealth charged Appellee, on November 11, 2015, with an additional 

1,061 counts of possession of child pornography at No. 1810-2015. The 

court consolidated the cases on December 16, 2015. On December 23, 

2015, Appellee filed a motion to suppress his interview statements to 

Detective Martin and to dismiss the additional 1,061 possession charges. 

The court held a suppression hearing on January 22, 2016, where Detective 

Martin testified. On May 4, 2016, the court granted in part and denied in 
J-A09040-17

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part Appellee’s suppression motion. The court suppressed Appellee’s August 

4

th interview statements as involuntary but did not dismiss the additional 

1,061 charges. The Commonwealth filed a timely notice of appeal on 

Monday, June 6, 2016, and certified in its notice of appeal that the court’s 

suppression order substantially handicapped or terminated prosecution. On 

that same day, the court ordered the Commonwealth to file a concise 

statement of errors complained of on appeal per Pa.R.A.P. 1925(b); the 

Commonwealth timely complied on June 27, 2016. 

The Commonwealth raises one issue for our review:

WHETHER THE TRIAL COURT ERRED IN GRANTING 

[APPELLEE’S] MOTION TO SUPPRESS STATEMENTS 

FINDING THAT THE STATEMENTS WERE NOT MADE 

VOLUNTARILY WHEN THEY WERE MADE BY [APPELLEE], 

DURING A VOLUNTARY VISIT TO THE POLICE STATION, 

WHEN HE WAS ACCOMPANIED BY HIS ATTORNEY 

THROUGHOUT HIS INTERVIEW, AND NO PROMISE OF 

ACTUAL IMMUNITY WAS MADE TO [APPELLEE?]

(Commonwealth’s Brief at 4). 

When the Commonwealth appeals from a suppression order, the 

relevant scope and standard of review are:

[We] consider only the evidence from the defendant’s 

witnesses together with the evidence of the prosecution 

that, when read in the context of the entire record, 

remains uncontradicted. As long as there is some 

evidence to support them, we are bound by the 

suppression court’s findings of fact. Most importantly, we 

are not at liberty to reject a finding of fact which is based 

on credibility.

The suppression court’s conclusions of law, however, are 

not binding on an appellate court, whose duty is to 
J-A09040-17

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determine if the suppression court properly applied the law 

to the facts.

Commonwealth v. Goldsborough, 31 A.3d 299, 305 (Pa.Super. 2011), 

appeal denied, 616 Pa. 651, 49 A.3d 442 (2012) (citations and quotations 

omitted). 

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable Thomas King 

Kistler, we conclude the Commonwealth’s issue merits no relief. The trial 

court’s opinion comprehensively discusses and properly disposes of the 

question presented. (See Trial Court Opinion, filed May 4, 2016, at 9-10) 

(finding: Appellee made inculpatory statements in interview with Detective 

Martin; Appellee was free to leave interview and had counsel present 

throughout interview; during suppression hearing, Detective Martin testified 

that he told Appellee during interview that if Appellee “was cooperative...and 

[if] he’s honest with me and I find what he’s telling me I’m going to find, 

then I would charge him with one count, but I couldn’t ultimately determine 

what would happen with the final disposition of the case”; notwithstanding 

Detective’s statement that Appellee was free to leave interview at any time, 

Detective was person in apparent authority to make and perform on his 

promise to file only one charge; Detective Martin was unable to bind District 

Attorney’s office with promises as to charging decisions; likewise, 

Commonwealth cannot then use evidence obtained as direct result of those 

promises against Appellee; under totality of circumstances, Appellee’s 
J-A09040-17

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interview statements to Detective Martin were involuntary and must be 

suppressed to put Appellee back in position as if he had not spoken with 

Detective Martin). The record supports the trial court’s reasoning. 

Accordingly, we affirm on the basis of the trial court opinion. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/27/2017
IRIO ORD DS 

1 The November 6, 2015 Motion was filed at docket number CP-14-CR-1371-2015, and the December 23, 2015 

Motion was filed at docket number CP-14-CR-1810-2015. Both Motions raise the same issues. · 

depicting a white prepubescent female with blonde hair and blue eyes, posing and 

2. Officer Mendez was able to download two videos from the above IP address, the first 

was sharing files containing child pornography using a Bit Torrent filed-sharing network. 

Mendez located a computer with the IP address of 207.174.204.29, which he determined 

was searching for hash values known to him to contain child pornography. Officer 

undercover investigation into the internet sharing of child pornography. Officer Mendez 

Commonwealth submitted a Brief in Opposition on March 24, 2016. For the following r~ons2~ 

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Defendant's Motion is DENIED. ~Z~~ ~ CJ 

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• ' -~- ..;;.,- I () FINDINGS OF FACT c)Oo &"" ;,J 

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1. On July 22, 2015, Officer Michael Mendez, of the West York Borough:Folk:e- ~ o 

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Department, specifically the Internet Crimes Against Children Unit, w~onduc~an C:, 

2016. Defendant submitted a Brief in Support of his Motion on March 6, 2016, and the 

November 6, 2015 and December 23, 2015. 1 A hearing on the Motion was held on January 22, 

Presently before the Court are Defendant's Omnibus Pre-Trial Motions filed on 

Kistler, J. 

OPINION AND ORDER 

Megan McGoron, Esq. 

Roy Lisko, Esq. 

Attorney for the Commonwealth: 

Attorney for the Defendant: 

ADAMZYDNEY 

No. CP-14-CR-1371-2015 

N~@~,,,_ 

v. 

COMMONWEAL TH OF PENNSYLVANIA 

IN THE COURT OF COJ.\D10N PLEAS OF CENTRE COUNTY, PENNSYLVANIA 

CRIMINAL ACTION - LAW 

Circulated 04/07/2017 01:56 PM
2 

2 Counsel for Defendant and the Commonwealth stipulated at the hearing to the contents of the video as Officer 

Mendez described to contain known child pornography. 

7. Defendant was present at the residence when the search was conducted. Electronic items 

internet or any electronic devices that are capable of storing images or videos. 

Martin was looking for any electronics that had the capability of connecting to the 

District Judge Dutchcot and was executed on the residence on July 31, 2015. Detective 

information provided to him by Officer Mendez. The search warrant was approved by 

6. Detective Martin then prepared a search warrant for the residence based on the 

associated with that specific address. 

subscriber information. Detective Martin confirmed the name Alexa Kottmeyer was 

information about the case including the local home address of the IP address and the 

Police Department. Detective Martin first contacted Officer Mendez and received 

5. The investigation was then assigned to Detective Martin of the Ferguson Township 

address fell within that jurisdiction. 

to the Ferguson Township Police Department by the dispatch center, as the subscriber's 

Aaron Drive in State College, Centre County, Pennsylvania. Officer Mendez was pointed 

subscriber information came back to Alexa Kottmeyer at the address of 801 A-11 West 

July 23, 2015. Officer Mendez had the search warrant served on getwireless.net. The 

4. The search warrant was approved by the Honorable Keith Albright of York County on 

particular IP address. His search revealed the IP address belonged to getwireless.net. 

determine the subscriber or company that has the wireless or internet server for that 

for the IP address. In doing so, Officer Mendez used a public service called "Aries" to 

3. Based on the video, Officer Mendez prepared an affidavit in support of a search warrant 

exposing her breasts and vaginal area. 2 
3 

DISCUSSION 

"The Commonwealth shall have the burden of going forward with the evidence and of 

were found, specifically a laptop computer later determined to belong to Defendant. This 

computer was forensically analyzed and child pornography, including the original videos 

viewed by Officer Mendez, were found on the laptop. 

8. While the search warrant was being executed, Detective Martin asked Defendant if he 

would like to speak with him. Defendant indicated he would like to speak to an attorney 

first. Detective Martin was contacted two days later by Attorney Lance Marshall to set up 

a meeting. Attorney Marshall and Defendant voluntarily met with Detective Martin at the 

Ferguson Township Police Department on August 4, 2015. 

9. Before the interview began, Detective Martin told Defendant that he was free to leave 

because this was not a custodial interrogation. Detective Martin also reminded Defendant 

that he did not have to speak to him. Detective Martin confirmed Defendant understood 

his rights. 

10. When questioned about what was contained on the laptop, Defendant admitted that child 

pornography would be discovered. During the forensic analysis, hundreds of images of 

child pornography were discovered. 

11. During the interview, Detective Martin told Defendant that ifhe cooperated and told him 

what he was going to find, and that was in fact what he did find, that he would charge 

him with only one count. However, Detective Martin did tell Defendant he could not 

ultimately determine what would happen with the final disposition of the case. 

12. Originally, Detective Martin did file only one charge of possession of child pornography. 

However, at a later date he was instructed by the District Attorney's Office to file 

additional charges. 
4 

establishing that the challenged evidence was not obtained in violation of the defendant's rights. 

The defendant may testify at such hearing, and if the defendant does testify, the defendant does 

not thereby waive the right to remain silent during trial." Pa.R.Crim.P. 58l(h). In all cases, the 

burden of production is now upon the Commonwealth. See Commonwealth ex rel. Butler v. 

Rundle, 239 A.2d 426 (1968). The burden of persuasion is there as well. See Miranda v. Arizona, 

384 U.S. 436, 479 (1966). See also, Commonwealth ex rel. Butler v. Rundle, supra., which 

establishes a preponderance of the evidence as the standard of proof. 

I. Motion to Quash/Suppress - Alleged Insufficiencies of Search Warrant 

Defendant alleges that Officer Mendez did not have the requisite probable cause within 

the four corners of the search warrant to effectuate a search. In particular, Defendant argues the 

search warrant application was insufficient because (1) the application does not provide a clear 

link between the IP address isolated by Officer Mendez and Defendant's apartment; and (2) even 

if the Court were to find that the application supplied the issuing authority with every necessary 

link from the IP address to the apartment address, the information relied upon to draw these links 

was stale at the time of application. 

The Fourth Amendment of the United States Constitution and Article 1, Section 8 of the 

Pennsylvania Constitution protect citizens of the Commonwealth from unreasonable searches 

and seizures pursuant to general warrants. Commonwealth v. Walston, 724 A.2d 289, 291 (Pa. 

1998). In Commonwealth v. Edmunds, the Pennsylvania Supreme Court explained the twin aims 

of Article 1, Section 8 as "the safeguarding of privacy and the fundamental requirement that 

warrants shall only be issued upon probable cause." Commonwealth v. Edmunds, 586, A2d 887, 

897 (Pa. 1991). "Before an issuing authority may issue a constitutionally valid search warrant, he 

or she must be furnished with information sufficient to persuade a reasonable person that 

probable cause exists to conduct a search." Commonwealth v. Baker, 615 A.2d 23, 24 (Pa. 1992). 
5 

Upon review, the duty of the court is to ensure the magistrate had a "substantial basis for ... 

concluding probable cause existed." Id 

"The standard for evaluating whether probable cause exists for the issuance of a search 

warrant is the "totality of circumstances" test as set forth in Illinois v. Gates, 462 U.S. 213, 103 

S.Ct. 2317, 76 L.Ed.2d 527 (1983), and adopted by [the Pennsylvania Supreme] Court in 

Commonwealth v. Gray, 509 Pa. 476, 484, 503 A.2d 921, 925 (1985)." Commonwealth v. Jones, 

668 A.2d 114, 116 (Pa. 1995). "A magistrate is to make a "practical, common-sense decision 

whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' 

and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability 

that contraband or evidence of a crime will be found in a particular place." Id. at 116-1 7 

( citations omitted). 

Officer Mendez's affidavit of probable cause contained his training and experience in 

child exploitation and child pornography investigations, as well as all of the information about 

the specific incident that led him to believe that evidence of child pornography would be located 

at the address he sought to obtain from getwireless.net. Specifically, Officer Mendez detailed his 

discovery of a computer sharing known child pornography, his successful download of a video 

file, a description of that video, and his use of Aires to discover the IP address in question 

belonged to getwireless.net. Based on this information, Officer Mendez sought a search warrant 

for getwireless.net to obtain the subscriber information connected to that IP address. Based on 

these facts, the Court finds that the factual averments set forth in Officer Mendez's affidavit of 

probable cause clearly provide a sufficient basis for issuing the search warrant. 

After obtaining the subscriber information from getwireless.net, Officer Mendez 

transferred the case to Detective Martin and the Ferguson Township Police Department. 

Detective Martin then obtained a search warrant using the same information Officer Mendez had 
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used to obtain the first search warrant. Detective Martin accidentally made a typographical error 

by listing Armstrong Cable Services as the service provider in his affidavit. However, just one 

line below, he correctly lists that a search warrant was served on getwireless.net and the 

subscriber information obtained was for Alexa Kottmeyer at 801 W. Aaron Drive, Apartment 

Al 1. Moreover, the Detective lists getwireless.net in a following paragraph detailing his 

discussion with Park Forest Apartments Management that they do provide internet through that 

company. The question now becomes whether this misstatement was material to the 

determination of probable cause by the issuing magistrate. 

"[S]earches conducted pursuant to warrants are to be favored over warrantless searches 

and thus ... must be tested with a commonsense, nontechnical, ungrudging, and positive 

attitude." Commonwealth v. Conner, 305 A.2d 341, 345 (Pa. 1973). "The test of materiality is 

not whether the misstatement strengthens the application, but rather whether the misstatement is 

essential thereto. This test is performed by deleting the misstatement and then determining 

whether sufficient probable cause remains in the application to issue a valid warrant." 

Commonwealth v. Jones, 323 A.2d 879, 881 (Pa. Super. Ct. 1974) (internal citations omitted). 

Thus, this Court must review the sufficiency of Detective Martin's affidavit of probable cause as 

if the mention of Armstrong Cable was not present. Without this statement, the affidavit still 

clearly states from what source the subscriber information was obtained, and that this 

information was obtained with a search warrant. Detective Martin's affidavit makes clear that 

getwireless.net was the provider from which the address to be searched was obtained. 

Furthermore, there is an overwhelming amount of information contained within the four comers 

of the affidavit for the issuing magistrate to be satisfied that evidence of child pornography 

would be located at that residence. Accordingly, the Court finds that the misstatement was not 

material, and there was still enough information in the affidavit for the magistrate to find 
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probable cause to issue the warrant. 

Defendant's last argument with respect to the search warrants is that the information 

upon which the officers relied in obtaining the search warrants was stale. Defendant argues that 

because the Commonwealth failed to present any evidence to rebut this claim prior to or during 

the hearing on the instant motion, it has failed to meet its burden to prove admissibility of the 

evidence. In his Motion, Defendant argues the association of Alexa Kottmeyer with 801 W. 

Aaron Drive was last made in October of 2014, and thus stale information insufficient to support 

a finding of probable cause. Defendant fails, however, to cite any law or conduct any analysis as 

to why this is of significant importance. The current subscriber information obtained from 

getwireless.net was that of Ms. Kottmeyer, and Detective Martin's checked the local database 

just to see if that name was associated anywhere within his jurisdiction. This determination had 

no bearing on the fact that child pornography was shared from an IP address associated with that 

location. Moreover, the Commonwealth presented ample evidence that the information used to 

obtain both search warrants was not stale because all events of the. investigation transpired over 

one week's time. As such, the Court finds no basis to conclude the information was stale, and 

Defendant's argument is without merit. Based on the foregoing, Defendant's Motion to Quash 

Search Warrant and Suppress Evidence is DENIED. 

II. Motion to Suppress - Statements to Police 

Defendant argues his confession to Detective Martin was not voluntary because it was 

given in reliance upon Detective Martin's promise to file only one charge in this matter. In 

· determining the voluntariness of a confession, the Court must look to the totality of the 

circumstances surrounding that confession. Commonwealth v. Nester, 709 A.2d 879, 882 (Pa. 

1998). "The question of voluntariness is not whether the defendant would have confessed 

without interrogation, but whether the interrogation was so manipulative or coercive that it 
8 

deprived the defendant of his ability to make a free and unconstrained decision to confess." Id In 

making this determination, a court should look at the duration and means of the interrogation, the 

physical and psychological state of the accused, the conditions attendant to the detention, the 

attitude of the interrogator, and any other factors that bear on a person's ability to withstand 

suggestion and coercion. Id It remains the Commonwealth's burden to prove voluntariness by a 

preponderance of the evidence. Id 

"It is well established that district attorneys, in their investigative and prosecutorial 

roles, have broad discretion over whether charges should be brought in any given case." 

Commonwealth v. Stipetich, 652 A.2d 1294, 1295 (Pa. 1995). "While the police exercise, as a 

practical matter, a certain discretion in deciding whether to make an arrest, issue a citation, or 

seek a warrant, the ultimate discretion to file criminal charges lies in the district attorney. Police 

officers have no authority to enter agreements limiting the power of the district attorney in this 

regard." Id. However, "a confession induced by a promise of immunity from a person in apparent 

authority to perform the promise is involuntary." Commonwealth v. Els/ager, 502 A.2d 1354, 

1359 (Pa. Super. Ct. 1986) (quoting Commonwealth v. Peters, 373 A.2d 1055, 1062 (Pa. 1977)). 

Where an involuntary confession is obtained, the proper response is to suppress the inculpatory 

evidence procured through an inaccurate representation that there would be no prosecution or 

only certain charges would be filed. Stipetich, 652 A.2d at 1296. 

In Commonwealth v. Stipetich, the Pittsburgh Police reached an agreement with the 

defendant's attorney that if the defendant would answer questions about the source of the drugs 

in his residence, no charges would be filed. Id. at 1294. Despite the defendant fulfilling his part 

of the agreement, Allegheny County authorities filed charges. Counsel for defendant filed a 

motion to dismiss, citing the non-prosecution agreement entered into with the Pittsburgh police. 

The Court of Common Pleas of Allegheny County granted the motion, and the Superior Court 
9 

affirmed. On appeal, the Supreme Court reversed the Superior Court's order, finding the nonprosecution agreement to be invalid because the Pittsburgh Police have no authority to bind the 

Allegheny County District Attorney's office as to whether charges would be filed. Id. at 1295. 

The Supreme Court reasoned that the decisions of the lower courts were based on the concern 

that allowing the charges to be brought after the defendant performed his part of the agreement 

would be fundamentally unfair because he may have disclosed information that could be used 

against him. In reversing the lower court's decision, the Supreme Court held the proper response 

to be one of suppression, not of dismissal. Thus, the Court reasoned, the defendant would be in 

the same position as if the unauthorized promise had never been made. Id at 1296. 

In the instant case, Defendant made inculpatory statements during an interview during 

which he was free to leave and was represented by counsel. During the suppression hearing, 

Detective Martin testified that he explained to Defendant during their meeting that if he "was 

cooperative and I understand what he's doing .... that helps me gauge on the charging decision. If 

that's the case and he's honest with me and I find what he's telling me I'm going to find, then I 

would charge him with one count, but I couldn't ultimately determine what would happen with 

the final disposition of the case." (NT pg. 30). While Defendant was told he was free to leave at 

any time and did not need to speak with Detective Martin, the Court finds that the Detective was 

a person in apparent authority to perform on his promise to only file one charge. Although 

Detective Martin cannot bind the Centre County District Attorney's Office with promises as to 

charging decisions, the prosecution cannot then use evidence obtained as a direct result of those 

promises against Defendant. Therefore, given the totality of the circumstances, the Court finds 

that Defendant's statements were not voluntary and must be suppressed. By ordering suppression 

of this evidence, the Court has put Defendant back in same position as he would have been had 

he not spoken to Detective Martin. Accordingly, Defendant's Motion to Suppress Statements is 
10 

III. Motion to Dismiss 

Based on the above rulings, Defendant's Motion to Dismiss is hereby DENIED. 

ORDER 

AND NOW, this 4th day of May, 2016, the Defendant's Omnibus Pre-Trial Motion is 

hereby ruled upon as follows: 

1. Defendant's Motion to Quash Search Warrant and Suppress Evidence is hereby 

DENIED. 

2. Defendant's Motion to Suppress Statements to Police is hereby GRANTED. 

3. Defendant's Motion to Dismiss is hereby DENIED. 

GRANTED.