Com. v. Powell, G. ( 2017 )

J-S16034-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GEORGE POWELL,
Appellant No. 1189 WDA 2016
Appeal from the Judgment of Sentence July 21, 2016
in the Court of Common Pleas of Fayette County
Criminal Division at No.: CP-26-CR-0001236-2015
BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MAY 15, 2017
Appellant, George Powell, appeals from the judgment of sentence
imposed following his jury conviction of distribution of child pornography and
related offenses. He challenges the validity of the search warrant, and
claims his statements to law enforcement were coerced. He questions the
sufficiency and the weight of the evidence. He argues that his sentence was
unconstitutional. He denies the evidence was sufficient to support the
determination that he is a sexually violent predator. He claims the
requirement of lifetime registration is unconstitutional. We affirm, in part on
the basis of the trial court’s opinions.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S16034-17
In its opinions, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case.1 Therefore, we have no reason to
restate them at length here.
For the convenience of the reader we note briefly that law enforcement
officers assigned to task forces involving violent crimes against children and
Internet crimes against children received cyber tips from the National Center
for Missing and Exploited Children, alerting them to the possibility that
Appellant was obtaining, possessing, and re-distributing contraband
pornographic images. The investigators obtained a court order which
identified Appellant as the subscriber to the relevant I-P addresses, some
registered in the name of his mother. After obtaining and executing a
search warrant, the investigators seized electronic devices containing
pornographic images from Appellant’s home. These images (published to
the jury at trial) included pictures and still screen shots, or “captures” from
videos of naked prepubescent children in provocative poses, or engaging in
sexual acts.
____________________________________________
1
Appellant’s pro se Motion to Disclose, seeking disclosure of the status and
disposition of his purported motion to disqualify appointed appellate counsel,
is denied as moot. (See Motion to Disclose, 2/09/17). Appellant’s motion to
disqualify counsel was denied, per curiam, on December 21, 2016. (See
Order, 12/21/16); see also Commonwealth v. Jette, 23 A.3d 1032, 1035
(Pa. 2011), and Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993)
(rejecting hybrid representation at trial or on appeal).
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J-S16034-17
After receiving, reading, and acknowledging receipt of his “Advice of
Rights,” (see Miranda v. Arizona, 384 U.S. 436 (1966)), Appellant
generally acknowledged searching for, obtaining, and resending images and
videos of children in sexually provocative poses or engaging in sex acts, i.e.,
child pornography.
Appellant raises at least eleven issues, framed as six compounded
questions, for our review:
1. Whether the suppression court erred in denying
[Appellant’s] omnibus pre-trial motion challenging the validity of
the search warrant and the voluntariness of [Appellant’s]
statements?
2. Whether the evidence presented at trial was insufficient
to establish that [Appellant]: 1) knowingly distributed,
delivered[,] disseminated, transferred, displayed or exhibited
photographs depicting a minor child engaged in prohibited sexual
acts; 2) knowingly possessed, controlled, or intentionally viewed
photographs depicting a minor child (or children) engaged in
prohibited sexual acts; and 3) intentionally, knowingly or
recklessly used a communication facility to commit a crime?
3. Whether the jury verdict was against the weight of the
evidence?
4. Whether the mandatory sentencing scheme set forth in
42 Pa.C.S.A. § 9718.2 is unconstitutional as its application 1)
results in cruel and unusual punishment; 2) is contrary to the
Supreme Court’s holding in Alleyne v. United States, 133 S.
Ct. 2151; and 3) is prohibited as applied under the ex post facto
clause of the United States and Pennsylvania Constitutions?
5. Whether the evidence was sufficient to find [Appellant]
a sexually violent predator?
6. Whether requiring [Appellant] to register for life is
unconstitutional[?]
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J-S16034-17
(Appellant’s Brief, at 7-8).
Preliminarily, we are reminded of the observation by the
Honorable Ruggero J. Aldisert, Senior Circuit Judge of the United
States Court of Appeals for the Third Circuit, that this Court has
previously cited in Kenis v. Perini Corp., 452 Pa. Super. 634,
682 A.2d 845 (1996), as well as other cases:
When I read an appellant’s brief that contains ten or
twelve points, a presumption arises that there is no merit
to any of them. I do not say that it is an irrebuttable
presumption, but it is a presumption that reduces the
effectiveness of appellate advocacy. Appellate advocacy is
measured by effectiveness, not loquaciousness.
Id. at 847 n.3 (citations omitted); see also Commonwealth v.
Snyder, 870 A.2d 336, 340 (Pa. Super. 2005) (“[T]he
effectiveness of appellate advocacy may suffer when counsel
raises numerous issues, to the point where a presumption arises
that there is no merit to any of them.”) (citations omitted).
J.J. DeLuca Co. Inc. v. Toll Naval Assocs., 56 A.3d 402, 409–10 (Pa.
Super. 2012).
Moreover, we note that for the most part, Appellant has failed to
develop arguments supported by citation to pertinent authority for his
eleven claims. See Pa.R.A.P. 2119(a), (b). Instead, he merely cites
authority for general principles not at issue here, states the case and
presents abbreviated, largely conclusory arguments, without appropriate
citation to the record. See Pa.R.A.P. 2117(c); Pa.R.A.P. 2119(c), (d), (e).
In particular, Appellant claims that the search warrant issued on
August 4, 2015 was defective. (See Appellant’s Brief, at 11-12). Contrary
to Appellant’s express assertion, the search warrant was supported by a
lengthy, specific, detailed affidavit of probable cause, identifying and
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J-S16034-17
describing at least sixteen image or video files depicting children from the
age of eight to sixteen engaged in provocative poses or actual sex acts.
(See Affidavit of Probable Cause, 8/04/15). The suppression court properly
denied Appellant’s Omnibus pre-trial motion, after a hearing. There was
clearly probable cause for the search warrant. Appellant’s claim is frivolous.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinions of the trial court we conclude
that there is no merit to any of the issues Appellant has raised on appeal.
The trial court opinions properly dispose of the questions presented.
(See Opinion and Order, 1/04/16, at 2-5; see also Trial Court Opinion,
11/09/16, at 2-12) (finding: (1) search warrant was valid, reasonable, and
supported by probable cause; Appellant’s statements were voluntary and
intelligently made; (2) evidence presented was sufficient to establish that
Appellant (a) knowingly distributed, delivered, disseminated, transferred,
displayed or exhibited photographs depicting a minor child engaged in
prohibited sexual acts; (b) knowingly possessed, controlled, or intentionally
viewed photographs depicting a minor child or children engaged in prohibited
sexual acts; and (c) intentionally, knowingly or recklessly used a
communication facility (laptop, cell phone, external hard drive) to commit a
crime; (3) trial court properly denied Appellant’s challenge to weight of the
evidence, which lacked merit; (4) Appellant failed to overcome presumption
of constitutionality or otherwise establish that his sentence was
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J-S16034-17
unconstitutional; specifically, Appellant failed to establish that (a) his
judgment of sentence constituted cruel and unusual punishment, (b) fact of
prior conviction was not an express exception to holding in Alleyne, and (c)
recognition of prior conviction for rape did not constitute ex post facto
violation; (5) Commonwealth provided sufficient evidence to classify
Appellant as sexually violent predator; and (6) Appellant failed to establish
that requirement of lifetime registration was unconstitutional2).
Accordingly, we affirm on the basis of the trial court’s opinions.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/15/2017
____________________________________________
2
Citing Commonwealth v. McDonough, 96 A.3d 1067, 1071 (Pa. Super.
2014), appeal denied, 108 A.3d 34 (Pa. 2015) (holding Commonwealth’s
Sexual Offender Registration and Notification Act (SORNA) registration
provisions constitutional as applied).
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Circulated 04120/2017 05:34 PM
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IN THE COURT OF COMMON PLEAS OF FAYETTE COUNTY,
PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA, : CRIMINAL ACTION
v.
GEORGE ARTHUR POlVELL, : NO. 1286 OF 2015
Defendant.
------------- : JUDGE JOSEPH M. GEORGE, JR.
AT1'0RNEYS AND LA\I\T FIRMS
Jessel A. Costa III, Esquire, Deputy Attorney General, For the Commonwealth
Mary Campbell Spegar, Esquire, Assistant Public Defender, For the Defendant
OPINION Al'\JD OR.:OER
GEORGE, J. January 4, 2016
This matter comes before the Court on an Omnibus Pre-Trial Motion filed on
September 21, 2015 in the form of Motion lo Suppress Evidence, Motion to Suppress
Statements, and Motion to Dismiss for Lack of Probable Cause. The defendant is
charged with one (l) oount of Dissemination of Child Pornography,' sixteen {16)
oounts of Child Pornography' and one (1) count of a Criminal Use of a
Communication l'i'acility.3 A hearing wea held on December 22, 2015. Upon and
after hearing and review of the reoord, the Court will DENY the motion in its
entirety.
• 18 Pa. C.S. § 6312(c).
' 18 Pa. C.S. § 6312(d).
' 18 Pa. C.S. § 7512(a).
1
'..,,,,,;;·
I. MOTION TO SUPPRESS EVIDENCE
The defendant raised in his Omnibus Pre-Trial Motion that the
Commonwealth unconstitutionally searched his computer and personal belongings
based on a lack of probable cause. (Paragraphs 8-12, OPT Motion). Both the
Fourth Amendment of the United States Constitution and Article 1 Section 8 of the
Pennsylvania Constitution require search warrants to be supported by probable
cause. Commonwealth v. Jones, 605 Pa. 188, 199, 988 A.2d 649, 655 (2010). The
Court must look at the totality of the circumstances to determine whether probable
cause existed for the issuance of a search warrant. Commonwealth. v. Huntington,
I
924 A.2d 1252, 1255 (Pa. Super. 2007). Under this standard, there must be a fair
probability based on the facts stated in the affidavit of probable cause that evidence
of a crime will be found in a particular place. Commonwealth. v. Murphy, 916 A.2d
679, 682 (Pa. Super. 2007). Finally, probable cause is based on a finding of the
probability, not a prima facie showing of criminal activity, and the magistrate, who
may not consider evidence outside the four corners of the affidavit, is to be accorded
deference in a finding of probable cause. Commonwealth v. Ryerson, 817 A.2d 510,
513-14 (Pa. Super. 2003).
In the instant case, the Commonwealth entered into evidence as
Commonwealth Exhibits 8, 9, and 11, the applications for search warrant. Thus,
after reviewing the search warrants and applying the "four corners" test, this Court
finds that the search was reasonable and justified by probable cause.
2
II. MOTION TO SUPPRESS STATEMENTS
Defendant next contends the statements made to Agent Fascetti were not
voluntarily and intelligently made and in violation of his constitutional rights.
When deciding a motion to suppress a confession, the
touchstone inquiry is whether the confession was
voluntary. Voluntariness is determined from the totality
of the circumstances surrounding the confession. 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
deprived the defendant of his ability to make a free and
unconstrained decision to confess. The Commonwealth
has the burden of proving by a preponderance of the
evidence that the defendant confessed voluntarily.
Commonwealth v. Nester, 551 Pa. 157, 709 A.2d 879, 882 (1998) (citation omitted).
This Court finds that, based on Agent Fascetti's testimony, the defendant's
statements were voluntarily and intelligently made. After the defendant was
placed under arrest, Agent Fascetti informed him of his Miranda rights, via the
Advice of Rights form, introduced into evidence as Commonwealth Exhibit 12.
Subsequently, the defendant waived his rights and initialed the form, indicating he
wanted to make a statement. Agent Fascetti testified that the defendant was of
sound mind and did not appear to be under the influence of alcohol or drugs when
he waived his rights and made his statement. Additionally, Agent Fascetti testified
that the defendant's answers were consistent with the questions asked, providing a
reasonable inference the defendant was aware of the situation.
3
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Therefore, we find the uncontested testimony of Agent Lorraine Fascetti to be
credible and conclude that the statements made by the defendant to Agent Fascetti
were knowingly and intelligently made and made of the defendant's own free will.
III. MOTION TO DISMISS FOR LACK OF PROBABLE CAUSE
The defendant contends the Commonwealth has a lack of evidence in
establishing that the defendant engaged in any criminal activity. In an Omnibus
Pre-Trial Motion for Petition for Habeas Corpus relief, the Court must determine
whether the Commonwealth established a prima facie case for the charged offenses.
Commonwealth. v. Packard, 767 A.2d 1068, 1070 (Pa. Super. 2001). "When deciding
whether a prima facie case was established, [the Court] must view the evidence in
the light most favorable to the Commonwealth, and ... consider all reasonable
inferences based on that evidence which could support a guilty verdict."
Commonwealth. v. James, 863 A.2d 1179, 1182 (Pa. Super. 2004) (citation omitted).
Unlike the beyond a reasonable doubt standard, a prim a f acie case is merely a
degree of evidence "that if presented at the trial in court, and accepted as true, the
judge would be warranted in allowing the case to go to the jury." Commonwealth. v.
Wojdah, 502 Pa. 359, 368, 466 A.2d 991, 996 (1983) (emphasis original); see James,
863 A.2d at 1182.
Upon consideration of Agent Fascetti's uncontradicted testimony and the
exhibits entered into evidence, the Court finds the Commonwealth has established a
prime facie case against the defendant. The Commonwealth's evidence included:
4
(1) Three cyber tips from social networking sites Pinterest and Tumblr of a
member who uploaded images of child pornography;
(2) The member name on the account was George Powell;
(3) The IP address used to post these images came from the location where
the defendant resides;
(4) The defendant's statement that he commonly shared pornographic images
on Pinterest and Tumblr;
(5) The defendant's statement that he thought the persons displayed in the
pornographic images were older than eighteen;
(6) Agent Fascetti's credible testimony of the investigatory steps taken in the
case;
(7) Agent Fascetti's lay opinion that the persons in the images were less than
eighteen-years-old; and
(8) The observations by the Court of several images which, in the Court's
opinion, were of children under the age of eighteen.
Wherefore we will enter the following Order:
5
IN THE COURT OF COMMON PLEAS OF FAYETTE COUNTY,
PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA, : CRIMINAL ACTION
v. : NO. 1236 OF 2015
GEORGE ARTHUR POWELL,
Defendant. : JUDGE JOSEPH M. GEORGE, JR.
ORDER
AND NOW, this 4th day of January, 2016, upon consideration of the
defendant's Omnibus Pre-Trial Motion in the form of Motion to Suppress Evidence,
Motion to Suppress Statements, and Motion to Dismiss for Lack of Probable Cause
and after hearing thereon, it is hereby ORDERED and DECREED that the Motion
is DENIED, in its entirety.
The Attorney General is DIRECTED to list this matter for trial.
W.o.RD·---
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Circulated 04/20/2017 05,34 P~
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IN THE COURT OF COMMON PLEAS OF FAYETTE COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
vs.
GEORGE ARTHUR POWELL, No. 1236 of 2015
Appellant.
_ OPINION.... . . .. . . . - .. .. . .. ... . . - - - -·
Linda R. Cordaro, J.
Following a trial by jury, George Arthur Powell (Appellant) was found guilty of
Distribution of Child Pornography, Sexual Abuse of Children (Possession of Child
Pornography), and Criminal Use of a Communication Facility. On July 21, 2016, Appellant
was sentenced to a term of imprisonment of not less than twenty-five years nor more than
fifty years. On July 29, 2016, Appellant filed a timely post-sentence motion, which was
denied by this Court, and Appellant filed a direct appeal to the Superior Court of
Pennsylvania.
The complaints contained in Appellant's "Concise Issues" are as
follows:
1. Whether the Suppression Court erred in denying Defendant's Omnibus
Pre-Trial Motion challenging the validity of the search warrant and the voluntariness of
Defendant's statements.
Page 1 of 12
2. Whether the evidence presented at trial was insufficient to establish
that the Defendant: (1) knowingly distributed, delivered disseminated, transferred,
displayed or exhibited photographs depicting a minor child engaged in prohibited sexual
acts; (2) knowingly possessed, controlled or intentionally viewed photographs depicting a
minor child (or children) engaged in prohibited sexual acts; and (3) intentionally,
knowingly or recklessly used a communication facility to commit a crime.
3. Whether the jury verdict was against the weight of the evidence.
4. Whether the mandatory sentencing scheme of 42 Pa. C.S.A. § 9718.2 is
unconstitutional as its application (1) results in cruel and unusual punishment; (2) is
contrary to the Supreme Court's holding in Alleyne v. United States, 133 S. Ct. 2151; and (3)
is prohibited as applied under the Ex Post Facto Clause of the United States and
Pennsylvania Constitutions.
5. Whether the evidence was sufficient to find the Defendant a sexually
violent predator.
6. Whether requiring the Defendant to register for life is unconstitutional.
The Court will address each issue numerically:
1. Error by the Suppression Court
After an Omnibus Pre-Trial Motion was filed on behalf of Appellant, a
hearing was held on December 22, 2015, before the Honorable Judge Joseph George. This
Court incorporates herein the Opinion authored by Judge George dated January 4, 2016.
2. Sufficiency of the Evidence
Appellant next contends that the Commonwealth did not provide
sufficient evidence to support his conviction for Distribution of Child Pornography, Sexual
Abuse of Children (Possession of Child Pornography), and Criminal Use of Communication ·
Facility.
The standard of review for a challenge to the sufficiency of the
evidence is to determine:
Page 2 of 12
whether, when viewed in the light most favorable to the verdict
winner, the evidence at trial and all reasonable inferences
therefrom is sufficient for the trier of fact to find that each
element of the crimes charged is established beyond a reasonable
doubt. Any doubt raised as to the accused's guilt is to be resolved
by the fact-finder. [In this context, appellate courts] do not assess
credibility nor assign weight to any of the testimony of record.
Therefore, [the verdict will not be disturbed] unless the evidence
is so weak and inconclusive that as a matter oflaw no probability
of fact may be drawn from the combined circumstances.
Commonwealth v. Vogelsang, 90 A.3d 717, 719 (Pa.Super. 2014).
Appellant first contends that the Commonwealth did not provide sufficient
evidence to support Appellant's Distribution of Child Pornography conviction. The statute
at issue sets forth, "Any person who knowingly distributes, disseminates, transfers, displays
or exhibits to others, any photograph, film, videotape, computer depiction or other material
depicting a child under the age of 18 years engaging in a prohibited sexual act or in the
simulation of such act commits an offense. 18 Pa. C.S.A. § 6312(c).
The Commonwealth presented testimony through Detective Havelka, a
member of the Allegheny County District Attorney's Office Internet Crimes Against ·
Children Task Force, that she received three "cyber tips" from the National Center for
Missing and Exploited Children.1 (T.T. vol. 1, pp. 32 - 36). The cyber tips were in relation
to three photos shared online through Tumblr and Pinterest, which appear to depict minors
in sexually explicit poses. Through a court order, Detective Havelka obtained the Internet
Protocol ("IP") addresses for the computer from where the shared photos originated, and
she received information that the IP addresses were assigned to Regina Powell at 95 West
Church Street, Fairchance, Pennsylvania 15436. ((T.T. vol. 1, pp. 36 - 38). Because the
I
Two cyber tips were generated by Twnblr and one cyber tip was generated by Pinterest. (T.T. vol. 1, pp. 32 - 36).
Page 3 of 12
address was out of her jurisdiction, she forwarded the investigation to the Attorney
General's office of Pennsylvania.
Detective Fascetti, from the Child Predator Section of the Pennsylvania
Office of the Attorney General, testified that after receiving Detective Havelka' s referral, she
requested Tumblr to freeze any accounts containing the email addresses of
gap_sr@yahoo.com and gapfarmer.tumblr.com. (T.T. vol. 1, pp. 49).2 Through search
warrants, Detective Fascetti corroborated that the Tumblr and Pinterest accounts from
where the photos were shared belonged to Appellant, and these accounts were opened using
the gap_sr@yahoo.com email address. (T.T. vol. 1, pp. 50 - 53). She also corroborated that
the IP address of the computer from where the photos originated was assigned to 95 West
Church Street, Fairchance, Pennsylvania, the Appellant's home, and she obtained a search
warrant for his home. (T.T. vol. 1, pp. 63).
Three electronic devices were recovered during the search: (1) an ASUS
laptop, (2) an LG cellular phone, and (3) an external hard drive. (T.T. vol. 1, pp. 62, 63).
Forensic Investigators found child pornography on all three devices (T.T. vol. 1, pp. 66 -
82), including the photo that was shared on Tumblr and Pinterest. During questioning,
Appellant admitted to the ownership of the gap_sr@yahoo.com email address (T.T. vol. 1,
pp. 91) as well as all three electronic devices (T.T. vol. 1, pp. 102). Appellant further
admitted that he visited Tumblr and Pinterest (T.T. vol. 1, pp. 93), and he shared and/or
"pinned" one of the photos (T.T. vol. 1, pp. 111). Considering the testimony offered by the
Commonwealth, this Court finds that the evidence was more than sufficient for the jury to
convict Appellant for Distribution of Child Pornography.
2
Detective Fascetti testified that the "gap" on the email addresses corresponds to Appellant's name George Arthur
Powell. (T.T. vol. 1, pp. 50).
Page 4 of 12
Appellant next contends that the Commonwealth did not provide
sufficient evidence to support the Sexual Abuse of Children (Possession of Child
Pornography) conviction. The relevant statute reads that:
Any person who intentionally views or knowingly possesses or
controls any photograph, film, videotape, computer depiction or
other material depicting a child under the age of 18 years engaging
in a prohibited sexual act or in the simulation of such act commits
an offense.
18 Pa. C.S.A. § 6312(d).
In addition to the previous admissions by Appellant, Detective Fascetti
testified that Appellant also admitted that he conducted searches of the following terms:
"Lolita"; "r@ygold"; "9-Y-O";and "13-Y-O"(T.T. vol. 1, pp. 94 - 95). These are terms
commonly associated with child pornography. Specifically,the "9-Y-O"denotes 9 year old,
and "13-Y-O"denotes 13 year old. (T.T. vol. 1, pp. 94). Appellant stated that he probably
would have viewed children as young as four years old, but he preferred girls between the
ages of 14 to 16. Additionally, Aprill Campbell, a Forensic Investigator with the Attorney
General's Office,testified that the Appellant had an elaborate scheme in which he
downloaded "mpeg" videos from his computer and converted them to "MP4" videos so he
could watch them on his cell phone. (T.T. vol. 1, pp. 33). Considering the Commonwealth's
evidence, this Court finds that the evidence was more than sufficient to convict the
Appellant of the crime of Sexual Abuse of Children.
Appellant also argues that the Commonwealth did not provide sufficient
evidence to support the conviction for Criminal Use of Communication Facility. The statute
provides that "a person commits a felony of the third degree if that person uses a
Page 5 of 12
communication facility to commit any crime which constitutes a felony under this title." 18
Pa. C.SA. § 7512(a).
The courts have held that using one's electronic device in their place of
dwelling to view child pornography violates 18 Pa.C.S.A.§7512(a). See generally Com v.
Colon, 2016 Pa. Super. 50, 136 A.3d 521, 527 (2016) (Superior Court upheld conviction for
§7512(a)when defendant used his laptop computer, in his apartment, to participate in child
pornography activity).
The jury had the opportunity to view the images through the exhibits that
were introduced and admitted by the Commonwealth. The jury properly found there was
sufficient evidence to convict Appellant of Section §7512(a)based on the exhibits viewed by
the jury and the testimony that the defendant was using his home computer to view and
share child pornography.
3. Weight of the Evidence
Appellant next argues that the verdict was against the weight of the
evidence. The jury, as the fact finder, exclusivelyweighs the evidence, assesses the
credibility of witnesses, and may choose to believe all, part, or none of the evidence.
Commonwealth vs. DeJesus, 580 Pa. 303, 860 A.2d 102 (2004). "A new trial is warranted
only when the jury's verdict is so contrary to the evidence that it shocks one's sense of
justice and the award of a new trial is imperative so that right may be given another
opportunity to prevail. Commonwealth v. Morales, 625 Pa. 146, 164, 91 A.3d 81, 91 (2014).
Here, the record shows Appellant opened the Tumblr and Pinterest
accounts using one of his three electronic devices, and he downloaded and shared child
pornography from internet sites. He also downloaded videos and converted them to a
format which he could watch on his cell phone. Appellant clearly had access and control
Page 6 of 12
over the three electronic devices and the child pornography files contained on the devices. A
forensic examination of the laptop revealed an extensive history of child pornography
related searches, image viewing, and video downloading. When viewing the evidence in its
totality, the guilty verdict does not shock the sense of justice, and the Court should not
substitute the fact finder's judgment. For the foregoing reasons, Appellant's argument that
the verdict is against the weight of the evidence is without merit.
4. Unconsti.tuti.onalityo[Sentencing Scheme
Appellant next contends that the mandatory sentence imposed under 42 Pa.
C.S.A.§ 9718.2(a)(1)is unconstitutional. 42 Pa.C.S.A.§ 9718.2 provides for the following
sentences for sexual offenders:
(a) Mandatory sentence.--(1) Any person who is convicted in any court of
this Commonwealth of an offense set forth in section 9799.14 (relating to sexual
offenses and tier system) shall, if at the time of the commission of the current
offense the person had previously been convicted of an offense set forth in section
9799.14 or an equivalent crime under the laws of this Commonwealth in effect at
the time of the commission of that offense or an equivalent crime in another
jurisdiction, be sentenced to a minimum sentence of at least 25 years of total
confinement, notwithstanding any other provision of this title or other statute to
the contrary. Upon such conviction, the court shall give the person oral and
written notice of the penalties under paragraph (2) for a third conviction. Failure
to provide such notice shall not render the offender ineligible to be sentenced
under paragraph (2).
The Pennsylvania Supreme Court has consistently held that enactments of the
General Assembly enjoy a strong presumption of constitutionality, Commonwealth v.
Barud, 545 Pa. 297, 304, 681 A.2d 162, 165 (1996), and all doubts are to be resolved in favor
of sustaining the constitutionality of the legislation. Commonwealth v. Blystone, 519 Pa.
450, 463, 549 A.2d 81, 87 (1988), affirmed, 494 U.S. 299, no S.Ct. 1078, 108 L. Ed. 2d 255
(1990). The right of the judiciary to declare a statute void is one which is so grave that it is
Page 7 of 12
never to be exercised except in very clear cases." Erie & North-East Railroad Co. v. Casey,
26 Pa. 287, 300 (1856). In order for an act to be declared unconstitutional, the challenging
party must prove the act "clearly, palpably and plainly" violates the constitution. Barud,
545 Pa. at 304, 681 A.2d at 165.
In Commonwealth vs. Baker, 621 Pa. 401, 78 A.3d 1044 (2013), the
Pennsylvania Supreme Court held, as a matter of first impression, that the mandatory
minimum sentence of 25 years for possession of child pornography as a second offender did
not violate the prohibition against cruel and unusual punishment. The Defendant in Baker,
like the Defendant in the instant case, was sentenced under a recidivist sentencing scheme.
The Eighth Amendment to the United States Constitution forbids only
extreme sentences which are grossly disproportionate to the crime. Baker, citing
Commonwealth v. Hall, 549 Pa. 269, 701 A.2d 190, 209 (1997)(quoting Harmelin v.
Michigan, 501 U.S. 957, 1001, 111 S. Ct. 2680, 115 L.Ed zd 836 (1991).
The fact that the Appellant was sentenced in March 1999 to 5 to 10 years for
rape, a felony of the first degree, invokes the mandate of 42 Pa.C.S.A. §9718.2(a)(1). The
nature of Appellant's prior offense goes to the gravity of his instant offense. Additionally,
like the Defendant in Baker, "[appellant's] crime is more accurately understood as
secondary or indirect participation in the sexual abuse and exploitation of innocent
children for personal gratification. That is a very serious and grave offense." Baker at 1052.
Here, there is no indication that the sentence in question is grossly disproportionate to the
crime; thus, Appellant cannot sustain its burden that the act clearly, palpably and plainly
violated the constitution.
We next consider Appellant's Ex Post Facto claims. "A state law violates
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the ex post facto clause if it was adopted after the complaining party committed the
criminal acts and inflicts a greater punishment than the law annexed to the crime, when
committed." Commonwealth v. Vaughn, 770 A.2d 287, 289 n. 2 (Pa.2001). "[I]f a
defendant completes a crime before an increased penalty take~ effect, it would violate his
right not to be subject to ex post facto legislation to impose the increased penalty upon
him." United States v. Julian, 427 F.3d 471, 482 (CA7 2005).
In the present case, the crimes for which the Appellant was convicted took
place between January 2015 and March 2015. (T.T. vol. 1., pp. 92). 42 Pa. C.S.A. §
9718.2(a)(1) was enacted in November 2006, long before the criminal conduct occurred.
Because Appellant committed the criminal acts long after the law had been enacted,
Appellant's claim of an ex post facto violation is without merit.
In addition, Appellant argues that the mandatory sentence scheme set
forth in 42 Pa.C.S.A.§9718.2 is contrary to the Supreme Court's holding in Alleyne v.
United States, 133 S. Ct. 2151. In Alleyne, "the United States Supreme Court held that any
facts leading to an increase in a mandatory minimum sentence are elements of the crime
and must be presented to a jury and proven beyond a reasonable doubt." Commonwealth v.
Valentine, 101 A.3d 801, 809 (Pa.Super.2014). However, this Court has explained that
"[p]rior convictions are the remaining exception toApprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Alleyne v. United States. --- U.S.----, 133
S. Ct. 2151, 186 L. Ed. 2d 314 (2013), insofar as a fact-finder is not required to determine
disputed convictions beyond a reasonable doubt to comport with the Sixth Amendment jury
trial right. Commonwealth v. Hale, 85 A.3d 570, 585 n.13 (Pa.Super.2014).
The Pennsylvania Superior Court addressed the constitutionality of§
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9718.2(a)(1) in Commonwealth v. Bowers, infra. In that case, the Superior Court issued a
non-precedential decision holding that because the "mandatory minimum sentence
contained in subsection 9718.2(a)(1) is predicated upon prior convictions, Alleyne does not
render it unconstitutional." Com. v. Bowers, No. 896 WDA 2015, 2015 WL 7354587, at 2
(Pa. Super. Ct. Noy. 19, 2015). Although the Bowers decision is non-precedential, it served
as a guide for the sentencing court.
5. Evidence ofAppellant's Classification as a Sexually Violent Predator.
Pursuant to 42 Pa. CSA 9799.24(b), Appellant was assessed by Corrine
Schueneman from the Pennsylvania Sexual Offender's Assessment Board. Prior to
sentencing, this Court heard testimony from Ms. Schueneman, who opined that Appellant
meets the classification of a sexually violent predator. Ms. Scheuneman testified that
Appellant meets the criteria for a paraphilic disorder; and this sexual deviant disorder was
the driving force behind his offending behavior. (Class. Hear. T., p. 17). She added that
paraphilic disorders are lifelong conditions that override a person's emotional volitional
control, and this predisposes an individual to a greater likelihood to reoffend and to
predatory sexual behavior. (Class. Hear. T., p. 18).
The Commonwealth provided sufficient evidence to classify Appellant as a
sexually violent predator.
6. Constitutionality oflifetime registration requirement
The final issue raised by Appellant is the argument that his lifetime
registration requirement under the Sexual Offender Registration and Notification Act is
unconstitutional.
Appellant was classified as a "Tier III" offender and ordered to register
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with the Pennsylvania State Police as a sexual offender for his lifetime.
On December 20, 2011, the legislature replaced Megan's Law with SORNA,
effective December 20, 2012, to strengthen registration requirements for sex offenders and
to bring Pennsylvania into compliance with the Adam Walsh Child Protection and Safety
Act, 42 U.S.C.A § 16901, er seq. Com u. Sampo/ski, 89 A.3d 1287, 1288 (Pa. Super. 2014).
Under 42. Pa.C.S.A. §9799.14, the statute establishes a three-tiered system of specifically
enumerated offenses requiring registration for sexual offenders for differing lengths of
time. Pursuant to section 9799.15(a)(1), a person convicted of a Tier I offense must register
for 15 years, a Tier Il offender must register for 25 years, while a Tier Ill offender, like
Appellant, must register for the remainder of his or her life. 42 Pa. C.S. § 9799.15
(a)(1),(a)(2), (a)(3).
In regards to registration requirements, the Pennsylvania Supreme Court,
under prior Megan's Law, held that a mandatory registration requirement for a convicted
sexual offender is not penal in nature. Com. v. Williams, 574 Pa. 487, 832 A.2d 962 (Pa.
2003).
Further, the Appellate Court bas addressed tbe constitutionality of the
Adam Walsh Act. Specifically, the Superior Court in Com. v. McDonough, 93 A.3d 1067 (Pa.
Super. 2014), recently affirmed a sentence of two years' incarceration and a fifteen year
registration requirement imposed on the Defendant. In McDonough, the Superior Court
recognized the similarity between Megan's Law and SO RNA and the Adam Walsh Act,
determining that although the Adam Walsh Act is a successor to Megan's Law, the
registration provisions contained therein are nearly identical in nature. The same principles
behind the registration requirements for sexual offenders under Megan's Law apply to
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those subject to SORNA in that the Adam Walsh statute was passed as a remedial
legislation used to effectuate the non-punitive goal of public safety.e Id. at 1071.
With this law to guide us, we find no constitutional bar to a lifetime
registration for a convicted sexual offender.
CONCLUSION
Based on a review of the evidence presented and the relevant statutory
authority, and for the reasons set forth herein, the judgment of sentence in this matter
should be affirmed.
BY THE COURT:
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Ll,J LINDA R. CORDARO, JUDGE
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3
See 42 Pa. C.S. § 9791 (a) (legislation findings and declaration of policy behind registration of sexual offenders). See
also 42 Pa. C.S. § 9799.10 (purpose ofregistration of sexual offenders under SORNA); see also HR. 75, 1951h Gen.
Assem. Reg. Sess. (Pa.2012).
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