Com. v. Amy, W. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
WESLEY P. AMY
Appellant No. 1813 MDA 2016
Appeal from the Judgment of Sentence May 20, 2016
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0002090-2014
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
WESLEY P. AMY
Appellant No. 1814 MDA 2016
Appeal from the Judgment of Sentence May 20, 2016
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0000658-2015
BEFORE: BOWES, J., OLSON, J., AND STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED AUGUST 17, 2017
Wesley P. Amy appeals from the aggregate judgment of sentence of
two to four years incarceration followed by four years of probation, which
was imposed after he was convicted of, inter alia, dissemination of obscene
* Former Justice specially assigned to the Superior Court.
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materials to minors, attempted unlawful contact with a minor, and
attempted sexual abuse of children. We affirm.
Appellant’s charges were filed at two separate docket numbers and
stem from conduct involving three different minors. The cases were
consolidated for trial. In the instant appeal, Appellant challenges only those
convictions related to the youngest of the three victims, L.W. However, we
briefly describe Appellant’s interaction with all three minors.
In the fall of 2013, the State College Area High School (“SCAHS”)
employed Appellant to teach computer networking courses in its vocational
program. Two minor female students, S.Z. and L.W., were enrolled in
Appellant’s course and sat in the back row of his classroom. In November,
another minor female student, L.P., began to unofficially attend Appellant’s
class instead of study hall with Appellant’s permission. Eventually, Appellant
encouraged her to enroll, promising that she would pass the course.
Throughout the school year, Appellant sat in the back of the classroom
and talked to the girls who were the only girls in the class. He joined their
discussions about school, boys, and anime, a Japanese form of animated
film or television, as if he were a peer. Appellant sought access to L.W.’s
and L.P.’s cellphones on multiple occasions. He asked them why they locked
their cell phones, suggested that they must have nude photos on their cell
phones, and asked to access them.
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Appellant’s inappropriate conduct did not stop at school. He became
friends with all three girls on Facebook and communicated with two of them,
L.W. and S.Z., through private messaging. L.W. was the target of most of
Appellant’s on-line activity. On November 25, 2013, Appellant sent L.W. a
link to a photograph of a young woman or teenager performing oral sex on a
man. After a three-minute delay, Appellant sent a message indicating that
the link was hijacked and he had not intended to send the pornographic
material. He told L.W. not to click the link, unless she wanted to be
shocked. He engaged L.W. in an extensive conversation in the early
morning of December 3, 2013, that continued into the evening. The
conversation began with school-related topics, but near midday, Appellant
suggested that his “dares” would “shock” L.W. and “haunt [her] dreams.”
Commonwealth’s Exhibit 1. This discussion included comments from
Appellant regarding pornography, including specific mention of Bible Black, a
pornographic anime.1 Appellant and L.W. discussed her sex life, and he
solicited naked photographs from her. Specifically, Appellant inquired about
L.W.’s “sexting pictures” and requested she send him pictures in a private
message. Id. When L.W. refused, Appellant said “you get an F.” Id. Then,
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1
Bible Black is a pornographic anime based on an erotic video game, and it
places female students at an academy in graphic sexual situations, including
bondage and rape. Commonwealth Exhibit 14.
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Appellant insinuated he would be looking at pornography and waiting for
L.W. to send him a nude photograph.
In January, Appellant implied to L.W. that he could change her grade,
but that there was not any class work she could do. Instead, L.W. had to
“motivate him” by midnight to improve her C+ to an A. Id. On April 24,
2014, Appellant requested pictures after L.W. got out of the shower, saying,
“pictures or it didn’t happen.” Id. On April 25, 2014, he told her to unlock
her phone so that he could see pictures of her. Despite Appellant’s
continued insistence, L.W. never sent him any nude or sexually suggestive
photographs. Appellant’s last conversation with L.W. occurred on April 28,
2014. He then removed L.W. and the other girls from his Facebook friends
list.
The authorities discovered Appellant’s conduct with respect to L.W.
through a series of events involving L.P. In late April 2014, Appellant placed
a flash drive labeled “Plan B” on L.P.’s desk. Initially, in front of all three
girls, Appellant claimed he did not know about the flash drive. However,
once Appellant was alone with L.P., he told her to put naked pictures on the
flash drive as an alternative to taking the final exam. On May 8, 2014, L.P.
discussed the event with S.Z. S.Z. subsequently informed her mother and
her mother, in turn, reported Appellant’s conduct to the administration,
which notified the State College Police Department.
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On the following Monday, May 14, 2014, Appellant was suspended
from his position at SCAHS pending a criminal investigation. On November
18, 2014, Appellant was charged with dissemination of obscene materials to
a minor with respect to L.W. and three counts of corruption of minors, one
count with respect to each girl. On April 6, 2015, the additional charges of
attempted sexual abuse of children and attempted unlawful contact with a
minor, both with respect to L.W., were filed. The two dockets were
consolidated on May 8, 2015.
On October 22, 2015, the case proceeded to trial. At trial, Appellant
testified on his own behalf. In his testimony, he offered explanations as to
why the sexually explicit link was not “knowingly” sent and contested that
his solicitations of nude photographs were made “jokingly.” N.T., 10/22/15,
at 355, 397. A jury convicted Appellant of all counts, and he received the
aforementioned sentence. Appellant filed a timely post-sentence motion on
May 31, 2016.2 On September 19, 2016, the trial court requested briefs on
the motion and extended the court’s deadline to decide the motion by thirty
days. Appellant’s post-sentence motion was denied by operation of law
pursuant to Pa.R.Crim.P. 720 (B)(3) on October 31, 2016.
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2
Appellant was sentenced on May 20, 2016. The tenth day after
sentencing, May 30, 2016, was Memorial Day, and thus, Appellant timely
filed on the next available business day, May 31, 2016.
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On November 3, 2016, Appellant filed this timely appeal. He filed a
Pa.R.A.P. 1925(b) statement of errors complained of on appeal and the trial
court issued its Pa.R.A.P. 1925(a) opinion. On appeal, Appellant raises the
following issues for our review:
I. Did the trial court err in denying Appellant’s request for a
criminal attempt-renunciation defense jury instruction,
Pennsylvania Standard Jury Instruction 12.901C?
II. Did the trial court err by denying Appellant’s motion for
judgment of acquittal on Centre County Criminal
Information No. CP-14-CR-2090-2014, count 1, obscene
and other sexual materials and performances -
dissemination to minors, and in denying to instruct the
jury with a binding instruction on this count . . . in that the
Commonwealth did not prove beyond a reasonable doubt
that Appellant acted knowingly when he sent the tinyurl [ 3]
link?
Appellant’s brief at 11 (unnecessary capitalization omitted and footnote
added).
Appellant’s first issue is a challenge to the trial court’s refusal to give a
requested jury instruction to the attempt charges. Specifically, he argues
that the trial court erred when it denied his requested jury instruction
regarding a renunciation defense to the attempted unlawful contact with a
minor and attempted sexual abuse of children where he presented evidence
that he ceased Facebook activity on April 28, 2014.
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3
The tinyurl link refers to the link to the pornographic picture that Appellant
sent to L.W. on November 25, 2013.
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Our Supreme Court has articulated the relevant standard of review as
follows:
In deciding whether a trial court erred in refusing to give a jury
instruction, we must determine whether the court abused its
discretion or committed an error of law. Where a defendant
requests a jury instruction on a defense, the trial court may not
refuse to instruct the jury regarding the defense if it is supported
by evidence in the record.
Commonwealth v. Demarco, 809 A.2d 256, 260-61 (Pa. 2002) (citations
omitted).
The evidence supporting such an instruction may be gleaned from a
defendant as a part of his case, from the evidence presented by the
Commonwealth in its case against him, or in his cross-examination of the
Commonwealth’s witnesses. Id. at 261 n.6. However, the trial court is not
required to provide legal instructions that cannot rationally be applied to the
facts adduced at trial. Commonwealth v. Hairston, 84 A.3d 657, 668 (Pa.
2014). Thus, a defendant must establish that the evidence presented at
trial would reasonably support a verdict based on the desired renunciation
instruction. Id.
Renunciation is an affirmative defense to the charge of criminal
attempt. The elements of criminal attempt are:
(1) an intent to commit a specific crime; and (2) any act
constituting a substantial step toward the commission of that
crime. The substantial step test broadens the scope of attempt
liability by concentrating on the acts the defendant has done and
does not any longer focus on the acts remaining to be done
before the actual commission of the crime. The defendant need
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not actually be in the process of the crime when arrested in
order to be guilty of criminal attempt.
Commonwealth v. Zingarelli, 839 A.2d 1064, 1069 (Pa.Super. 2003)
(internal citations and quotations omitted).
It is a defense to criminal attempt when a defendant demonstrates
that,
under circumstances manifesting a voluntary and complete
renunciation of his criminal intent, the defendant avoided the
commission of the crime attempted by abandoning his criminal
effort and, if the mere abandonment was insufficient to
accomplish such avoidance, by taking further and affirmative
steps which prevented the commission thereof.
18 Pa.C.S. § 901(c)(1). Put simply, renunciation “requires a showing that
the defendant avoided the commission of the crime attempted by
abandoning his criminal effort.” Zingarelli, supra, at 1072.
We examine each of the attempt crimes for which Appellant was
charged in order to discern whether sufficient evidence was offered to permit
a jury finding that Appellant fully abandoned his criminal attempt. In the
absence of such evidence, the instruction was not warranted.
Regarding the first charge, an individual commits the offense of
unlawful contact with a minor when “he is intentionally in contact with a
minor . . . for the purpose of engaging in . . . sexual abuse of children as
defined in section 6312.” 18 Pa.C.S. § 6318. Section 6312 prohibits, in
pertinent part, causing or knowingly permitting a minor to produce
photography of nudity for the purposes of sexual gratification. Hence, the
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attempted crime of unlawful contact with a minor required the
Commonwealth to prove Appellant specifically intended to contact a minor
for the purposes of producing or acquiring nude photographs.
Appellant’s primary support for a renunciation defense to his attempt
charges was the uncontested fact that he ceased contacting L.W. via
Facebook on April 28, 2014. Appellant’s brief at 25. Additionally, he relied
on his own testimony alleging that he decided to cease his inappropriate
discussions with L.W. Id. at 24-25.
We note that 18 Pa.C.S. § 6318, unlawful contact with a minor, does
not require Appellant to commit the underlying enumerated offense.
Commonwealth v. Reed, 9 A.3d 1138, 1146 (Pa. 2010). Appellant has
committed the crime once he has contacted the minor for the purpose of
causing or knowingly permitting a minor to photograph or film a sexual act.
Id.; see 18 Pa.C.S. § 6312(b). Thus, Appellant needed to provide evidence
showing complete renunciation of any substantial step he took towards the
crime of contacting a minor for the purpose of acquiring sexually explicit
photographs. 18 Pa.C.S. § 6318; See Commonwealth v. Gilliam, 417
A.2d 1203, 1205 (Pa.Super. 1980) (discussing the substantial step test).
While the Commonwealth charged Appellant with the inchoate offense
of criminal attempt, Appellant’s substantial step was contacting L.W. for the
purpose of acquiring nude photographs. He fully completed those actions
before he stopped communicating with L.W., who repeatedly refused to
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comply with Appellant’s demands. Thus, Appellant did not show that he
“avoided the commission of the crime attempted by abandoning his criminal
effort.” Zingarelli, supra at 1072. With respect to attempted unlawful
contact with a minor, Appellant’s criminal effort was complete when he
contacted L.W. for the purpose of soliciting nude photographs. 18 Pa.C.S.
§§ 6318, 6312(b). Thus, the trial court did not abuse its discretion or
commit an error of law when it refused to give the renunciation instruction
as to the offense of attempted unlawful contact with a minor.
Appellant’s second criminal attempt charge stems from similar, but
distinct conduct. The underlying crime of sexual abuse of children requires
causing or knowingly permitting “a child under the age of 18 years to
engage in a prohibited sexual act or in the simulation of such act . . . if
[Appellant] knows, has reason to know or intends that such act may be
photographed, videotaped, depicted on computer or filmed.” 18 Pa.C.S. §
6312(b).4 Thus, to qualify for a renunciation jury instruction on the second
charge, Appellant needed to adduce evidence reasonably showing that he
completely and voluntarily renounced his intent to procure sexually explicit
photos from L.W. in such a way as to avoid the actual production of such
photos. 18 Pa.C.S. §§ 901, 6318; Zingarelli, supra at 1072. In the
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4
This attempt charge focused on the actual attempt to produce the
photographs, as opposed to the attempt to contact a minor for the purpose
of producing the photographs.
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alternative, Appellant needed to show that he took “further and affirmative
steps which prevented the commission” of the crime. 18 Pa.C.S. § 901(c).
We find that there was no evidence in the record warranting a
renunciation instruction. Appellant induced L.W. to produce sexually explicit
photographs when he solicited the transfer of nude images from L.W.
Appellant’s renunciation, therefore, had to be sufficient to prevent the
production of a nude photograph by the minor, in this case L.W. However,
L.W. could have created a nude photograph, induced by Appellant’s prior
substantial steps, after Appellant ceased his Facebook activities. Thus,
Appellant’s purported change-of-heart was not enough to prevent the crime
and entitle Appellant to a renunciation defense. Appellant’s act of
terminating on-line contact was merely passive and not an active step
tending to prevent the commission of the crime. Appellant needed to take
further steps to demonstrate to L.W. that he had abandoned his efforts.
However, Appellant never expressed to L.W., before or after April 28,
2014, that he no longer desired such material or that such requests were
inappropriate, or otherwise provided evidence that his abandonment
prevented the commission of the underlying crime. Indeed, the only
evidence regarding activity after April 28, 2014, was provided by the
Commonwealth. That proof indicated that Appellant continued to seek nude
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photographs from the girls in person while in the classroom.5 Thus,
Appellant did not present or point to evidence at trial to reasonably support
a renunciation defense, and thus, we affirm the trial court’s denial of such an
instruction.
Appellant’s next claim is a challenge to the sufficiency and weight of
the evidence supporting his conviction for dissemination to minors. We will
first distinguish weight and sufficiency claims, as Appellant conflates the two
distinct concepts. A sufficiency of the evidence claim posits that the
evidence introduced by the Commonwealth does not establish each element
of the pertinent crime. Commonwealth v. Widmer, 744 A.2d 745, 751
(Pa. 2000). A weight claim concedes that there is sufficient evidence, but
that some facts so outweigh the others that to ignore them or accord them
equal weight would be a miscarriage of justice. Id. at 751-52. A successful
challenge to the weight of the evidence results in a new trial, while a
successful challenge to the sufficiency of the evidence results in discharge.
Id. Thus, we first address Appellant’s sufficiency challenge.
Whether the evidence was sufficient to support the conviction presents
a question of law; our standard of review is de novo and our scope of review
is plenary. Commonwealth v. Walls, 144 A.3d 926, 931 (Pa.Super. 2016)
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5
This included the “Plan B” flash drive which led to the investigation into
Appellant’s activities.
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(citation omitted). We are guided by the following well-established
standard:
In reviewing the sufficiency of the evidence, we must determine
whether the evidence admitted at trial, and all reasonable
inferences drawn from that evidence, when viewed in the light
most favorable to the Commonwealth as verdict winner, was
sufficient to enable the fact finder to conclude that the
Commonwealth established all of the elements of the offense
beyond a reasonable doubt. It is well-established that the
Commonwealth may sustain its burden of proof by means of
wholly circumstantial evidence and the jury, while passing upon
the credibility of witnesses and the weight of the evidence, is
free to believe all, part, or none of the evidence.
Commonwealth v. Yandamuri, 159 A.3d 503, 514 (Pa. 2017) (quotation
marks and citations omitted).
Appellant limits his challenge to the sufficiency of the evidence that he
“knowingly” disseminated. The Commonwealth must prove that Appellant
“knowingly disseminat[ed] . . . explicitly sexual materials to a minor.” 18
Pa.C.S. § 5903(c). Explicitly sexual materials is defined by statute, in
pertinent part, as follows: “any picture, photograph . . . or similar visual
representation or image of a person or part of the human body which depicts
nudity [or] sexual conduct, . . . and is harmful to minors.” Id.
Appellant concedes that he sent a link to L.W., a minor, of sexually
explicit material.6 Appellant sent the sexually explicit link to L.W. during a
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6
The link led to an image of a young woman or teenager engaging in oral
sex.
(Footnote Continued Next Page)
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conversation about fixing L.W.’s issues with her Netflix streaming. Appellant
contemporaneously told L.W. that the link was “hijacked,” 7 told L.W. not to
look at the link, and sent her a new link for downloading programs necessary
to troubleshoot Netflix. Commonwealth Exhibit 1. In his testimony and
brief, Appellant emphasized that the link was hijacked and, therefore, he
could not have knowingly disseminated the sexually explicit material.
Appellant’s brief at 35.
However, the Commonwealth introduced evidence undermining the
credibility of Appellant’s testimony and his explanation for the link. First,
Appellant waited three minutes before he explained his mistake to L.W.,
telling her not to click the link. Most tellingly, Appellant told L.W. not to look
at the picture “unless you want a shock.” (emphasis added).
Commonwealth Exhibit 1. The fact finder was free to credit or discredit
Appellant’s testimony as it saw fit. Plainly, the evidence suffices, when
viewed in the light most favorable to Commonwealth, to support Appellant’s
conviction for knowingly disseminating sexually explicit materials to L.W., a
minor.
_______________________
(Footnote Continued)
7
At trial, Appellant explained that a malware virus or hacker can redirect a
link so that the intended link sends the user to a different website. N.T.,
10/22/15, at 355.
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Next, we turn to Appellant’s challenge to the weight of the evidence.
This Court does not reexamine the underlying evidence when reviewing a
weight of the evidence claim. Commonwealth v. Konias, 136 A.3d 1014,
1022. Rather, “we evaluate the trial court’s exercise of discretion in
resolving the challenge.” Id. Thus, a weight of the evidence challenge must
be first presented to the trial court in a post-sentence motion in order to be
preserved. Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa.Super.
2012). Appellant submitted a post-trial motion challenging the weight of the
evidence and, therefore, preserved the issue and we may examine his claim
on its merits.
We give the utmost deference to the trial court’s ruling on a weight
claim because the trial judge heard and saw the evidence presented at trial.
Commonwealth v. Leatherby, 116 A.3d 73, 82 (Pa.Super. 2015). Hence,
we will not overrule a trial court’s weight determination unless it is so
contrary to the evidence as to shock one’s sense of justice. Konias, supra,
at 1022.
In the instant case, Appellant contends that the fact finder accorded
too little weight to his testimony regarding the hijacking of the tinyurl link.
Thus, he contends the finding that he knowingly disseminated was against
the weight of the evidence. However, Appellant fails to acknowledge that
the jury was clearly entitled to weigh this testimony in the context of the
other evidence adduced at trial. The jury’s rejection of Appellant’s testimony
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did not shock the trial court’s conscience and, hence, we find no abuse of
discretion by the trial court. Widmer, supra, at 751-52.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2017
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