Com. v. Sauers, N. , 159 A.3d 1 ( 2017 )

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2017 PA Super 84COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NATHAN ROBERT SAUERS,
Appellant No. 3123 EDA 2015
Appeal from the Judgment of Sentence June 16, 2015
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0002645-2013
BEFORE: SHOGAN, SOLANO, and PLATT,* JJ.
OPINION BY SHOGAN, J.: Filed March 29, 2017
Nathan Robert Sauers (“Appellant”) appeals from the judgment of
sentence entered on June 16, 2015, in the Monroe County Court of Common
Pleas. We affirm the convictions, vacate in part the judgment of sentence,
and remand for re-sentencing.
On August 4, 2013, Monroe County Detective Brian Webbe was using a
proprietary police version of the Ares peer-to-peer file-sharing network1
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
“The internet-based, peer-to-peer program in this case, Ares, is available
online as a free, downloadable program enabling a user to place files in and
retrieve and download files from a shared folder accessible to other Ares
users.” Commonwealth v. Colon-Plaza, 136 A.3d 521, 524 n.4 (Pa.
Super. 2016).
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known as Ares Round-up Software (“software”) to investigate on-line child
pornography. During his search, Detective Webbe identified a computer
with an IP address of 50.29.128.171 and a username of “FromK9to5” as
containing downloaded child pornography. The detective downloaded ten
files from the suspect computer. Armed with a court order, Detective Webbe
identified Appellant as the owner of the IP address and username. Upon
execution of a search warrant at Appellant’s home, Detective Webbe found
Appellant’s Dell laptop computer. Because no child pornography was
immediately discovered on the computer, Detective Webbe used forensic
software to examine the computer. He found files indicating that Appellant’s
computer had recently downloaded the Ares program and that the program
had been used to view, download, and share child pornography.
Appellant was charged with ten counts of possession of child
pornography, ten counts of dissemination of child pornography, and one
count of criminal use of a communications facility.2 Following a more in-
depth examination of Appellant’s computer, Detective Webbe found an
additional eighty-seven files containing child pornography in the unallocated
space of Appellant’s computer. Consequently, Appellant was charged under
a separate docket with eighty-seven counts of possession of child
pornography. The cases were joined for trial.
____________________________________________
2
18 Pa.C.S. § 6312(c), (d), and § 7512, respectively.
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A jury convicted Appellant on all eleven counts on the first docket, and
it acquitted him of the eighty-seven counts on the second docket. The trial
court sentenced Appellant to incarceration for an aggregate term of sixty to
120 months. Additionally, the trial court designated Appellant as a Tier III
sexual offender and directed his compliance with the lifetime reporting
requirements of the Sexual Offender Registration and Notification Act
(“SORNA”), 42 Pa.C.S. §§ 9799.10–9799.41. Appellant filed post-sentence
motions, which the trial court denied. Appellant filed a timely appeal. He
and the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant raises the following questions for our review:3
1. Whether the trial court abused its discretion when it admitted
into evidence video evidence of child pornography and
photographic evidence of child pornography without first
viewing the entire content prior to publishing same to the jury
thereby inflaming the passions of the jury, and thus, denying
[A]ppellant a fair trial.
2. Whether the failure of the Commonwealth to provide and/or
allow forensic evaluation of their “Modified Ares – Round-
up[”] Software denied [A]ppellant a fair trial under Article I
Section 9 of the Pennsylvania Constitution, and the 6 th and
14th Amendment[s] of the United States Constitution,
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3
Appellant’s Pa.R.A.P. 1925(b) statement filled five pages and consisted of
eighteen paragraphs, several of which had multiple subparts. The trial court
deemed most of the issues waived on the basis of the statement’s
imprecision and vagueness, and the remaining issues meritless. Trial Court
Opinion, 1/19/16, at 10, 11. Additionally, Appellant’s brief fails to include a
copy of the trial court’s opinion or a Rule 1925(b) statement of errors, as
required under Pa.R.A.P. 2111(a)(10) and (11). Although we do not
condone these defects, they do not prevent effective appellate review in this
case; therefore, we will address Appellant’s issues.
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AND
Whether the Commonwealth’s claim that the “Modified
Ares – Round-up[”] Software is proprietary, and thus
not subject to distribution or review by outside
computer forensic experts denied [Appellant] a fair trial
by preventing [Appellant] from confronting the evidence
against himself at trial under the Pennsylvania
Constitution, Article 1 Section 9, and the “confrontation
clause” of [the] 6th Amendment of the United States
Constitution.
3. Whether the evidence was sufficient to support the verdict
that [Appellant] actually possessed and/or disseminated child
pornography.
4. Whether the trial court’s jury instructions regarding the
definition of possession which included the trial court judge’s
own instruction ignored other jurisdictions definitions of
possession, and denied [Appellant] a fair trial under both
Article I Section 9 of the Pennsylvania Constitution and the 6th
Amendment of the United States Constitution.
5. Does a trial court deny a defendant a fair trial under Article I
Section 9 of the Pennsylvania Constitution, Sixth Amendment,
and the Fourteenth Amendment of the United States
Constitution where it denies individual voir dire in a child
pornography case where: the social prejudices associated
with child pornography in a public forum voir dire denies a
defendant the ability in vetting individual jurors regarding
social, religious and personal prejudices on the subject of
child pornography?
6. Whether the sentencing court abused its discretion where it
made repeated references during sentencing, trial, and
pretrial to the fact that [Appellant] made the trial court and
the jurors see the child pornography during his trial, and
thus, subjected the jury to being victims themselves.
7. Whether the sentencing court abused its discretion wherein
the record demonstrates repeatedly that the sentencing court
punished [Appellant] for taking his case to trial.
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8. Whether the trial court abused its discretion where it used a
far more egregious case as its reasons and justifications for
imposing the sentence it did upon [Appellant].
9. Whether the sentencing court abused its discretion where it
imposed incarceration upon [Appellant] (a first time
offender[)] where the very case the sentencing court used to
justify its sentence was a case involving a recidivist offender.
Appellant’s Brief at 7–8 (renumbered).
Appellant first challenges the admission of the Commonwealth’s
photographic and video evidence of child pornography. With regard to the
admission of evidence:
we give the trial court broad discretion, and we will only reverse
a trial court’s decision to admit or deny evidence on a showing
that the trial court clearly abused its discretion. An abuse of
discretion is not merely an error in judgment, but an overriding
misapplication of the law, or the exercise of judgment that is
manifestly unreasonable, or the result of bias, prejudice, ill-will
or partiality, as shown by the evidence or the record.
Commonwealth v. Flamer, 53 A.3d 82, 86 (Pa. Super. 2012) (citations
and quotation marks omitted). The trial court will be reversed only if an
error in the admission of evidence contributed to the verdict.
Commonwealth v. Konias, 136 A.3d 1014, 1022 (Pa. Super. 2016),
appeal denied, 145 A.3d 724 (Pa. 2016).
Admissibility depends on relevance and probative value.
Evidence is relevant if it logically tends to establish a material
fact in the case, tends to make a fact at issue more or less
probable, or supports a reasonable inference or presumption
regarding a material fact. Once evidence is found to be relevant,
it will be inadmissible only if its probative value is substantially
outweighed by the danger of unfair prejudice or confusion.
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Commonwealth v. Lilliock, 740 A.2d 237, 244 (Pa. Super. 1999)
(quotation marks and citations omitted); Pa.R.E. 403.
Appellant claims the trial court erred as “gate-keeper” when, prior to
publishing the materials to the jury, the trial court viewed three still images
and four videos that the Commonwealth intended to introduce but then
allowed the Commonwealth to admit all of the videos, and, thereby “exposed
the jury to hig[h]ly prejudicial and inflame[m]atory evidence without viewing
[it] prior to showing it to the jury.” Appellant’s Brief at 11 (citing N.T.,
3/3/15, at 76–88, 184–202; United States v. Cunningham, 694 F.3d 372(3rd Cir. 2012)). Additionally, Appellant argues, admission of ninety-seven
images and videos, when Appellant was willing to stipulate to their content,
was prejudicial, cumulative, and not harmless error. Id. at 10, 12, 13.
In response, the Commonwealth explains, “[I]n an effort to minimize
any potential prejudicial effect, the Commonwealth sought to introduce only
a sample of the [challenged] evidence and not the entire ‘collection.’”
Commonwealth’s Brief at 9. Moreover, although it was not required to do
so, the Commonwealth would have agreed to Appellant’s stipulation that the
remaining images constituted child pornography, but Appellant refused to
stipulate. Consequently, the Commonwealth considered it necessary to
show all of the images to sustain its burden. Id.; N.T., 3/3/15, at 12, 74.
The trial court addressed this issue on the pretrial record as follows:
You can’t just say I object to all [of] the Commonwealth’s
evidence that it may or may not put in and have a judge make a
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peremptory ruling. What you can do is to say that if –– which is
what both of you said this morning –– is that within that
evidence there are some individual depictions, some individual
videos that you believe that under no circumstance should come
into this case and if you want to identify them and have me rule
on them now I will; but I’m not going to rule on in the abstract
what the Commonwealth may or may not put into evidence.
* * *
If I took your argument to its logical conclusion then in
every criminal case the [c]ourt should have a pre-hearing
conference, ask the Commonwealth to trot out it’s [sic]
evidence, lay it out on the table, play it on a TV screen, get a
tape recorder out here and play the audios, either get people to
come in and give their testimony or provide a summary on it and
then decide ahead of time what’s admissible and what’s not
admissible.
I understand that that’s the logical full conclusion to what
you’re arguing. I understand that the [c]ourt ultimately has to
be the arbiter of what’s fair or not; but the [c]ourt just doesn’t
go out and do things otherwise we don’t need a defense and the
Commonwealth[;] we just look at the evidence ourselves and
decide it.
* * *
This is sort of classic child pornography, and so in a child
pornography case showing those seven, three of which were
photos, none of which are unduly long, all of which are
disturbing, doesn’t to me convert this into something that’s
prejudicial to the point where the prejudicial outweighs the
probative value.
N.T., 3/3/15, at 61, 70, 85. Upon review of the record, we agree with the
trial court and conclude that Appellant’s first issue lacks merit.4
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4
“To the extent our legal reasoning differs from the trial court’s, we note
that as an appellate court, we may affirm on any legal basis supported by
(Footnote Continued Next Page)
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The Commonwealth sought to sustain its burden of proof by
introducing the videos and photographs of child pornography recovered from
Appellant’s computer. N.T., 3/3/15, at 83. Appellant did not file a pretrial
request to exclude specific videos or photographs. Id. at 23–25, 60, 67–68,
71, 73. Rather, on the eve of trial, Appellant sought to preclude the
introduction of the Commonwealth’s entire evidentiary collection by
stipulating to its content. Id. at 60–61. In response, the parties agreed to
a sample viewing by the trial court of four videos and three photographs
(“sample evidence”). Id. at 65–81, Exhibit 9. Appellant then objected to
the sample evidence as unduly prejudicial. Id. at 82. Applying a “regular
evidentiary prejudice vs. probative balancing analysis,” the trial court ruled
that it would allow the Commonwealth to present the sample evidence. Id.
at 16–18, 85. As to the Commonwealth’s remaining videos and photographs
(“remaining evidence”), the trial court declined to rule on their admissibility
until an issue arose at trial. Id. at 86.
During trial, the Commonwealth moved for admission of the sample
evidence on a DVD and for admission of the remaining evidence on a thumb
drive. N.T., 3/4/15, at 163–164, Exhibits 9 and 10, respectively. The trial
court recognized Appellant’s continuing objection to the sample evidence,
and Appellant raised no objection to the remaining evidence. Id. at 164.
_______________________
(Footnote Continued)
the certified record.” Commonwealth v. Williams, 125 A.3d 425, 433 n.8
(Pa. Super. 2015).
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The Commonwealth then published the sample evidence to the jury through
Detective Webbe. Id. at 184–189, Exhibit 9. To avoid having to publish the
remaining evidence, the prosecutor specifically asked defense counsel at a
side bar if Appellant would stipulate that the remaining evidence constituted
child pornography. Id. at 190. Defense counsel responded, “We can’t
stipulate.” Id. Therefore, the Commonwealth published the remaining
evidence to the jury, and Appellant did not object. Id. at 191–199, Exhibit
10.
Based on the record before us and our deferential standard of review,
we discern no error in judgment or manifestly unreasonable exercise of
judgment, no overriding misapplication of the law, no bias, prejudice, ill-will,
or partiality by the trial court. Flamer, 53 A.3d at 86. With Appellant’s
consent, the trial court previewed the sample evidence, applied a prejudice-
versus-probative-value balancing analysis, set parameters for publication of
the evidence to the jury, and enforced those parameters at trial. Trial Court
Opinion, 1/19/16, at 14 n.5; N.T., 3/3/15, at 76–80; N.T., 3/4/15, at 166–
169, 184–189, Exhibit 9. We approve of the trial court’s procedure. See
Commonwealth v. Hicks, 91 A.3d 47, 54 (Pa. 2014) (holding that the
balancing of probative value and prejudice is generally better left for trial,
but may be appropriate in some pretrial situations). Moreover, the
Commonwealth was not required to shelve its entire collection by accepting
a defense stipulation designed to protect Appellant from the publication of
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disturbing images to the jury. Accord Commonwealth v. Evans, 348 A.2d
92 (Pa. 1975) (holding that the Commonwealth may use any “proper”
evidence to prove its case, and does not have to accept the accused’s
stipulations); Commonwealth v. Stanley, 446 A.2d 583 (Pa. 1982) (citing
Evans). Furthermore, the evidence was not cumulative as “each image of
child pornography possessed by an individual is a separate, independent
crime under Section 6312.” Commonwealth v. Jarowecki, 985 A.2d 955,
961 n.10 (Pa. 2009) (citation and quotation marks omitted).
Additionally, as the trial court explained, any perceived error in the
admission of the video and photographic evidence did not result in prejudice
to Appellant:
if allowing the Commonwealth to introduce evidence of the child
pornography or our failure to view all of it first truly inflamed the
passions of the jury to the point where a guilty verdict was
inevitable, the opportunity for a fair trial was removed, and the
jurors could not, individually or collectively, be fair and impartial,
we would have expected that [Appellant] would have been
convicted in both cases.5 . . .
5
[Appellant’s] argument is premised, in part, on the
fact that we did not view all of the child pornography
first. However, we did review a sample before trial
began, set parameters for how the Commonwealth
would be permitted to show the images and videos,
and enforced the parameters during trial. (N.T.H.,
3/3/15, pp. 76–80); (N.T., 3/4/15, pp. 184–189).
Further, despite [Appellant’s] protestations to the
contrary, there is no ruling requiring the [c]ourt to
preview and rule pre-trial on evidence. In the
context of [Appellant’s] argument, the guiding
evidentiary principle is that the evidence must be
probative and its probative value must outweigh any
prejudicial impact. As discussed in the text, the
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acquittal in the companion case demonstrates that
the images and videos were not unduly prejudicial.
However, [Appellant] was not convicted in both cases. His
acquittal in the companion case amply demonstrates that the
jurors’ passions were not inflamed and that any error in ruling
we may be deemed to have made did not prejudice him to the
point where he was constitutionally denied a fair trial. Absent
the prejudice and harm he claims, [Appellant’s] assignments of
error are bootless.
Trial Court Opinion, 1/19/16, at 14–15.
In sum, we conclude that the trial court did not err as gate-keeper
when it previewed the sample evidence and was prepared to rule at trial on
any defense objections to the remaining evidence. Thus, Appellant’s
challenge to the admission of the sample evidence lacks merit. As for the
remaining evidence, our review of the trial transcript reveals that the
defense did not offer a timely and specific objection to its admission before
or during the trial. N.T., 3/4/15, at 164, 191–199, Exhibit 10. “Such failure
to offer a timely and specific objection results in waiver of this claim.”
Commonwealth v. Bruce, 916 A.2d 657, 670 (Pa. Super. 2007) (citation
omitted).5
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5
Even if we were to find a challenge to the remaining evidence preserved,
Appellant stipulated that the remaining evidence depicted child pornography.
N.T., 3/3/15, at 8. Used for this purpose, the remaining evidence was
clearly relevant and admissible to sustain the Commonwealth’s burden of
proof on the second set of charges. Moreover, the trial court’s parameters
for viewing the videos and photographs alleviated any concerns about the
remaining evidence entering “the realm of being overly prejudicial.” N.T.,
3/3/15, at 86; N.T., 3/4/15, 166–169, 191–199. Additionally, Appellant was
(Footnote Continued Next Page)
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A final aspect of Appellant’s first issue concerns his reliance on
Cunningham, 694 F.3d 372, for the proposition that the trial court was
required to review all of the Commonwealth’s videos and photographs before
admitting them into evidence. In Cunningham, the Court of Appeals
overturned the district judge’s decision to admit challenged evidence of
pornography based only on his reading of the written descriptions of the
video excerpts and not on his personal viewing of them. Id. at 383.
Appellant’s reliance on Cunningham is unavailing. “Absent a United
States Supreme Court pronouncement, decisions of federal courts are not
binding on state courts[.]” Commonwealth v. Walker, 139 A.3d 225,
230–231 (Pa. Super. 2016), appeal denied, 257 EAL 2016 (Pa. Oct. 13,
2016) (quoting Commonwealth v. Lambert, 765 A.2d 306, 315 n.4 (Pa.
Super. 2000) (citation omitted)). Moreover, we distinguish Cunningham on
several fronts. First, Mr. Cunningham challenged specific video excerpts and
photographs in pretrial motions. Cunningham, 694 F.3d at 377–378.
Contrarily, Appellant did not identify which specific videos or photographs he
was challenging in a pretrial motion. N.T., 3/3/15, at 25. Second, the
district court determined admissibility based solely on graphic written
descriptions of the challenged video excerpts. Cunningham, 694 F.3d at
_______________________
(Footnote Continued)
acquitted of all charges based on the remaining evidence. N.T., 3/6/15, at
110. Therefore, there exists no merit to this challenge, even if it were
properly preserved.
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380. This component is not present in the case at hand. Third, the district
court did not review any of the challenged video excerpts before admitting
them over objection. Id. Here, with Appellant’s approval, the trial court
viewed the sample evidence proffered by the Commonwealth at a pretrial
hearing. N.T., 3/3/15, at 75–78. Fourth, the district court admitted all of
the challenged video excerpts despite the probative value of some of them
being outweighed by their prejudicial effect. Cunningham, 694 F.3d at
389–390. Here, applying a balancing test and strict parameters, the trial
court admitted the sample evidence, which it found more probative than
prejudicial, and the remaining evidence, to which Appellant did not object.
N.T., 3/4/15, at 164, 166–169. Cunningham is inapposite.
In his second issue, Appellant presents a constitutional challenge to
the Commonwealth’s software. Our rules of criminal procedure provide that
the Commonwealth is not required to produce discovery that is neither
inculpatory nor exculpatory; nor is it required to produce its investigatory
methods. Pa.R.Crim.P. 573(B)(1). Additionally, issues not raised in the trial
court are waived and cannot be raised for the first time on appeal. Pa.R.A.P.
302(a).
Appellant complains that he was denied his right to confront the
evidence against him under the United States and Pennsylvania
Constitutions because the Commonwealth refused to allow an evaluation of
the software by Appellant’s forensic expert. Appellant’s Brief at 15–22. In
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response, the Commonwealth argues that Appellant has waived this issue by
failing to preserve it in the trial court. Commonwealth’s Brief at 15.
The record reveals that Appellant requested discovery of the software
at the direction of his forensic computer expert, Dr. Rebecca Mercuri.
Motion to Compel, 7/1/14, at ¶¶ 9, 10, Exhibit B. Because the
Commonwealth refused to deliver the software, claiming that it was a
proprietary investigative tool, the trial court conducted two omnibus
hearings, accepted briefs, and entered an order requiring the
Commonwealth to disclose the name and version of the software. N.T.,
7/16/14; N.T., 9/29/14; Order, 7/18/14. By the start of a third omnibus
hearing, the software discovery issue appeared to have been settled because
the Commonwealth provided the name and version of the software. N.T.,
1/12/15, at 5–6. Nonetheless, Appellant again challenged the
Commonwealth’s refusal to deliver the software and, for the first time,
raised the Sixth Amendment confrontation clause. N.T., 1/12/15, at 43.
The trial court rejected Appellant’s discovery argument, stating “[I]t’s not an
open issue[.]” Id. at 45. Appellant next raised the confrontation clause in
his Brief in Support of Post Sentence Motion. Brief in Support of Post
Sentence Motion, 9/9/15, at 7. At the post-sentence motion hearing, the
trial court addressed this issue as follows:
Next, is the Confrontation Clause. [Appellant] has
challenged –– has requested that he actually be able to inspect
and review the Commonwealth’s software from the beginning of
this case.
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I ruled on that matter several times and stated my reasons
already. Now, the defense has –– now, the defense has taken a
different tact, and has indicated that the Commonwealth’s
refusal to allow him to do so and my ruling somehow violated
[Appellant’s] Confrontation Rights.
I don’t find any legal support for that argument. I also
believe that the Commonwealth has crept [sic] that that
particular argument wasn’t raised or preserved in any earlier ––
in a prior stage in this case, and is mentioned in the brief but not
in the post-sentence motion of [Appellant].
Finally, I will point out that while [Appellant] is talking
about the Confrontation Rights, which, of course, requires a
meaningful opportunity to confront those who present evidence
against you, the record amply demonstrates that substantial
discovery was provided to [Appellant]; that the defense expert
was here for more than a day; and that she spent time with
Detective Webb[e]; that she spent time with the hardware; that
she knew about the software; that many, many documents and
lots of information about this were provided to the defense
ahead of time; that the expert had a sufficient basis and a
substantial basis on which to testify –– the defense expert that is
–– and that Detective Webb[e] was vigorously cross-examined
by counsel for [Appellant].
So, to the extent that the Confrontation Clause argument
has legs, I don’t think they have any merit.
N.T., 9/21/15, at 25–27. Finally, Appellant raised the confrontation clause
issue in his statement of errors. Pa.R.A.P. 1925(b) Statement, 11/3/15, at
¶¶ 1, 2.
Upon review of the certified record, we conclude that this issue is
waived because Appellant did not properly preserve it in the trial court. This
failure is not cured by submitting the challenge in a Rule 1925(b) statement.
Accord Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003)
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(holding that guilty plea issue was waived where appellant did not raise it in
the trial court before raising it in his Rule 1925(b) statement).6
Appellant’s third issue challenges the sufficiency of the evidence that
he possessed and disseminated child pornography. Appellant’s Brief at 22.
We employ a well-settled standard of review for sufficiency claims:
The standard we apply in reviewing the sufficiency of
evidence is whether, viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test, we
may not weigh the evidence and substitute our judgment for
that of the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
trier of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Colon-Plaza, 136 A.3d 521, 525–526 (Pa. Super.
2016) (quoting Commonwealth v. Robertson–Dewar, 829 A.2d 1207,
1211 (Pa. Super. 2003)).
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6
Even if this issue were not waived, we would affirm the trial court’s
conclusion on the basis of its post-sentence remarks and its well-reasoned
opinion to this Court. N.T., 9/21/15, at 25–27; Trial Court Opinion, 1/19/16,
at 22–25.
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A person is guilty of sexual abuse of children, dissemination of
photographs, videotapes, computer depictions, and films, if he “knowingly...
possesses for the purpose of sale, distribution, delivery, dissemination,
transfer, display or exhibition to others, any...computer depiction...depicting
a child under the age of [eighteen] years engaging in a prohibited sexual act
or in the simulation of such act....” 18 Pa.C.S. § 6312(c). Similarly, “[a]ny
person who intentionally views or knowingly possesses or controls any ...
computer depiction ... depicting a child under the age of [eighteen] years
engaging in a prohibited sexual act or in the simulation of such act commits”
sexual abuse of children, child pornography. 18 Pa.C.S. § 6312(d).
The crux of Appellant’s argument is that the Commonwealth proffered
partial downloads from his Dell laptop which were insufficient to sustain the
convictions of possession and dissemination. Appellant’s Brief at 22–27.
Notably, Appellant offers no binding, legal authority that the
Commonwealth’s evidence was insufficient to support his convictions under
18 Pa.C.S. § 6312(c), (d). Specifically, Appellant cites to the Third Circuit
Court of Appeals’ decision in United States v. Husmann, 765 F.3d 169 (3d
Cir. 2014), and the Ninth Circuit Court of Appeals’ decision in United States
v. Flyer, 633 F.3d 911 (9th Cir. 2011). Appellant’s reliance on Husmann
and Flyer are unavailing. Again, absent a pronouncement by United States
Supreme Court, decisions of federal courts are not binding on state courts.
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Walker, 139 A.3d at 230–231. Moreover, Husmann and Flyer are
distinguishable.
In Husmann, the Court of Appeals concluded that the mere act of
placing child pornography materials in a shared computer folder, available to
other users of a file sharing network, does not constitute distribution of child
pornography. The Court of Appeals based its ruling on the fact that the
government did not present evidence that any person had actually
downloaded or obtained the materials that Husmann made available in his
shared computer folder. Husmann, 765 F.3d at 176. In contrast, here the
Commonwealth presented evidence that Detective Webbe actually
downloaded and obtained materials, including five complete files, from
Appellant’s computer that were available to other users of the Ares file-
sharing network. N.T., 3/4/15, at 82–97.
In Flyer, the government recovered files from the unallocated space of
Flyer’s Gateway computer hard drive. The government conceded, however,
that it presented no evidence that Flyer knew of the presence of the files on
the unallocated space or that Flyer had the forensic software required to see
or access the files. Because there was no evidence that Flyer had accessed,
enlarged, or manipulated any of the charged images, and he made no
admission that he had viewed the charged images on or near the time
alleged in the indictment, the Court of Appeals overturned Flyer’s conviction
for possession of child pornography. Flyer, 633 F.3d at 919. In contrast,
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Detective Webbe testified that Appellant had accessed the images recovered
from the unallocated space of his computer and then deleted them;
nevertheless, the jury acquitted Appellant of the eighty-seven charges based
on those images. N.T., 3/4/15, at 100–105; N.T., 3/6/15/ at 110.
Our review of the record confirms the trial court’s finding that
Detective Webbe’s testimony, along with the video and photographic
evidence, was sufficient to prove that Appellant possessed and distributed
the child pornography through the use of his computer. Trial Court Opinion,
1/19/16, at 33–34. Thus, Appellant’s sufficiency challenge is unconvincing.
In his fourth issue, Appellant attacks the trial court’s jury instruction
on the definition of possession. We employ the following standard in
assessing jury instructions:
[W]hen evaluating the propriety of jury instructions, this Court
will look to the instructions as a whole, and not simply isolated
portions, to determine if the instructions were improper. We
further note that, it is an unquestionable maxim of law in this
Commonwealth that a trial court has broad discretion in phrasing
its instructions, and may choose its own wording so long as the
law is clearly, adequately, and accurately presented to the jury
for its consideration. Only where there is an abuse of discretion
or an inaccurate statement of the law is there reversible error.
Commonwealth v. Trippett, 932 A.2d 188, 200 (Pa. Super. 2007)
(quoting Commonwealth v. Kerrigan, 920 A.2d 190, 198 (Pa. Super.
2007) (internal citations, quotation marks, and brackets omitted)).
According to Appellant, the trial court’s definition of possession lacked
the necessary “element of intent to exercise control over an item.”
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Appellant’s Brief at 31. Moreover, Appellant challenges the trial court’s
reliance on Commonwealth v. Diodoro, 970 A.2d 1100 (Pa. 2009),
because that case “dealt with the viewing of child pornography, and
whether that alone, could constitute control.” Appellant’s Brief at 31
(emphasis in original). The Commonwealth responds that Appellant’s
complaint lacks merit because the trial court “has broad discretion in
phrasing its instructions to the jury,” and “did in fact consider and use some
of the out-of-jurisdiction language proposed by the Appellant.”
Commonwealth’s Brief at 24, n.6.
The record confirms that defense counsel proposed a jury instruction
on the definition of possession from Massachusetts which included intent-to-
exercise-control language. N.T., 3/6/15, at 8. Notably, Appellant cites no
binding authority—and we have found none—for the proposition that “intent
to exercise control” is an element of possession under 18 Pa.C.S. § 6312(d).
Rather, Appellant again cites to federal case law from other jurisdictions
which is not binding on this Court. Appellant’s Brief at 29–31; Walker, 139
A.3d at 230–231.
The trial court rejected Appellant’s foreign definition as too narrow
because it focused on the possession of a physical object rather than on the
possession and dissemination of child pornography through a computer and
the internet. N.T., 3/6/15, at 11–16, 76–78. Instead, the trial court relied
on Diodoro, in which the Pennsylvania Supreme Court:
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examined the meaning of the word “control” in the context of
possession or control over child pornography. 18 Pa.C.S.A. §
6312(d). The [Diodoro] Court found that searching for and
clicking on images and videos of child pornography constituted
control under the statute, regardless of the “location” of these
images on the internet.
Trial Court Opinion, 1/19/16, at 40 n.6 (citing Diodoro, 970 A.2d at 1107).7
The trial court supports its ruling with the following rationale:
[A]fter considering the applicable statutes, the submissions and
arguments of the parties, and the decision in Diodoro we
provided instructions on each crime that gave effect to the plain
language of the Child Pornography statutes, incorporated the
holding and rationale of and definitions discussed in Diodoro,
included the common meanings and definitions of terms used in
the statutes, and recognized that a person can commit
Possession of Child [P]ornography by possessing, controlling, or
intentionally viewing it and the crime of Disseminating Child
Pornography by knowingly selling, distributing, delivering,
disseminating, transferring, displaying or exhibiting child
pornography to others, or possessing child pornography for the
purpose of sale, distribution, delivery , dissemination, transfer,
display, or exhibition to others. (N.T., 3/6/15, pp. 85–88).
Trial Court Opinion, 1/19/16, at 40–41.
____________________________________________
7
We explained in Diodoro that the Pennsylvania Legislature knowingly
included both “possession” and “control” in the statute. See Diodoro, 970
A.2d at 1107 (“[T]he statute employs the disjunctive ‘knowingly possesses
or controls,’ 18 Pa.C.S. § 6312(d)(1) (emphasis added). It is reasonable to
conclude that the General Assembly employed the terms ‘possession’ and
‘control’ in the disjunctive purposefully and that they were meant to have
different applications.”).
Notably, the Diodoro Court expressly declined to consider “arguments
made by both [the] appellant and the Commonwealth addressing whether
such conduct [accessing and viewing child pornography over the internet]
constitutes possession of child pornography under Section 6312(d).”
Diodoro, 970 A.2d at 1105 n.6.
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Our review of the record reveals no abuse of the trial court’s discretion
or error of law in the possession instruction. The trial court spent
considerable time discussing Appellant’s proffered instruction with counsel.
N.T., 3/6/15, at 8–17, 76–78. The trial court also explained its concern
about Appellant’s definition of possession on the record: “I don’t think it’s
sufficient and I think it would be misleading in a case involving computers,
the cyber world, and all the technological matters that we heard about
throughout this trial.” Id. at 8, 9. The trial court even provided Appellant
an opportunity to edit the proposed definition by including the technological
aspects of the case. Id. at 14, 16, 76–78. Then, the trial court instructed
the jury on all of the elements of the three crimes charged. Id. at 84–90.
Additionally, although the trial court was not required to use Appellant’s
definition of possession in its jury charge, it did use some of the same
language. Id. at 86–87. Moreover, defense counsel responded affirmatively
when the trial court asked, “Counsel satisfied with the charge?” Id. at 100.8
Upon review of the entire jury charge, and not simply isolated portions, we
conclude that the trial court clearly, adequately, and accurately presented
the law to the jury. Id. at 80–100.
____________________________________________
8
Arguably, we could find this issue waived because Appellant did not object
after the trial court concluded its charge. Bruce, 916 A.2d at 670 (stating
that failure to offer a timely and specific objection results in waiver of the
claim). However, the record fairly suggests that Appellant had a continuous
objection to the trial court’s rejection of his proposed instruction. N.T.,
3/6/15, at 78.
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Appellant’s fifth assignment of error concerns the denial of his motion
for individual voir dire. “A defendant has a right to an impartial jury
pursuant to the Sixth and Fourteenth Amendments to the United States
Constitution and Article 1, § 9 of the Pennsylvania Constitution.”
Commonwealth v. Chmiel, 889 A.2d 501, 519 (Pa. 2005) (citations
omitted); Commonwealth v. Wimbush, 951 A.2d 379, 383 (Pa. Super.
2008). “The purpose of voir dire is to ensure the empaneling of a fair and
impartial jury capable of following the instructions on the law as provided by
the trial court.” Commonwealth v. Noel, 104 A.3d 1156, 1168 (Pa. 2014)
(quoting Commonwealth v. Marrero, 687 A.2d 1102, 1107 (Pa. 1996)
(citation omitted)). “The process of selecting a jury is committed to the
sound discretion of the trial judge and will be reversed only where the record
indicates an abuse of discretion, and the appellant carries the burden of
showing that the jury was not impartial.” Chmiel, 889 A.2d at 519; Noel,
104 A.3d at 1169.
Appellant complains that the trial court denied him a fair trial by
conducting voir dire collectively: “[T]he social prejudices associated with
child pornography in a public forum voir dire denies a defendant the ability
in vetting individual jurors regarding social, religious and personal prejudices
on the subject of child pornography[.]” Appellant’s Brief at 32 (emphasis
omitted). According to the Commonwealth, Appellant did not properly
preserve this issue, and therefore, it is waived. Commonwealth’s Brief at
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26. Alternatively, the Commonwealth argues, Appellant “has not nor can he
show that the jury was no[t] impartial. The Appellant was acquitted in the
companion case, clearly showing the jury was not biased against him.”
Commonwealth’s Brief at 26–27.
The trial court rejected Appellant’s argument for several reasons:
First, once again, [Appellant] was acquitted in the
companion case. Given the acquittal, it is hard to imagine how
the chosen form of jury selection prejudiced him or how
[Appellant] might believe the jury was not impartial.
Second, procedurally, [Appellant] did not properly
preserve this assertion for appellate review in that he did not
sufficiently flesh out this issue by pointing to any specific defect
in the jury selection process that was employed, any specific
harm or prejudice he suffered, any specific question or
(categories of question) counsel was unable to ask, any juror he
would have questioned further if questioning was done
individually, any juror whose “social, religious, or personal
prejudice” would have resulted in disqualification of excusal for
cause, or any point during the selection process which should
have prompted us to switch to individual voir dire. Simply,
[Appellant] does not specifically allege that the jury selected was
not fair and impartial. Rather, he merely asserts that, in child
pornography cases, individual jury selection should be utilized.
...
Third, regardless of the belief of [Appellant] or his
attorneys, individual voir dire is currently required by the
Pennsylvania Rules of Criminal Procedure only in capital cases.
In all other cases, the trial judge may select either individual voir
dire or the list challenge system (group voir dire) to select a
jury. Pa.R.Crim.P. 631(F)(1). In this proceeding, as this was
not a capital case, or a case involving massive pre-trial publicity,
we determined there was no need for individual voir dire. This
decision is discretionary per Rule 631 and, as discussed,
[Appellant] has failed to allege or demonstrate how we abused
our discretion or how he was prejudiced by our choice.
Trial Court Opinion, 1/19/16, at 38–39 (citation to record omitted).
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Upon review, we find support in the certified record for the trial court’s
ruling. N.T., 3/3/15, at 5–8, 14–15, 55–58. Moreover, we discern no abuse
of discretion by the trial court in conducting voir dire collectively. Thus, we
conclude that Appellant’s contrary assertion does not warrant relief. In
reaching this conclusion, we adopt as our own the well-reasoned analysis of
the trial court set forth above.
Appellant’s four remaining issues challenge his sentence as an abuse
of the sentencing court’s discretion. Appellant’s Brief at 36. We reiterate
that “[t]he right to appellate review of the discretionary aspects of a
sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d 127, 132
(Pa. Super. 2014). Rather, where an appellant challenges the discretionary
aspects of a sentence, the appeal should be considered a petition for
allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa.
Super. 2007). As we observed in Commonwealth v. Moury, 992 A.2d 162(Pa. Super. 2010):
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal,
see Pa.R.A.P. 902 and 903; (2) whether the issue
was properly preserved at sentencing or in a motion
to reconsider and modify sentence, see Pa.R.Crim.P.
[708]; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from
is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
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Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.
Super. 2006)). With regard to the third requirement, we have explained:
[A]n appellant who challenges the discretionary aspects of a
sentence in a criminal matter shall set forth in his brief a concise
statement of the reasons relied upon for allowance of appeal
with respect to the discretionary aspects of a sentence. Pa.R.A.P.
2119(f). Such a statement must raise a substantial question,
which we have described as a plausible argument that the
sentence is contrary to a specific provision of the Sentencing
Code or to the fundamental norms underlying the sentencing
process. Should a defendant fail to comply with these
procedures, this Court is empowered to dismiss his appeal. See
Commonwealth v. Penrod, 578 A.2d 486, 490 (Pa. Super.
1990).
Commonwealth v. Bonds, 890 A.2d 414, 417 (Pa. Super. 2005) (internal
quotation marks and case citation omitted); Commonwealth v. Mouzon,
812 A.2d 617, 627 (Pa. 2002).
Herein, Appellant filed a timely notice of appeal, and he preserved
sentencing issues in a post-sentence motion. Notice of Appeal, 10/14/15, at
1; Motion, 6/24/15, at ¶ 24. However, Appellant’s Pa.R.A.P. 2119(f)
statement is woefully deficient in that it simply lists his four sentencing
issues, which differ in some instances from the issues raised in his post-
sentence motion. Appellant’s Brief at 8. Although Appellant has labeled the
section of his argument addressing his sentencing challenges in an apparent
attempt to comply, nowhere does he articulate the manner in which the
sentence violates either a specific provision of the sentencing scheme set
forth in the Sentencing Code or a particular fundamental norm underlying
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the sentencing process. Appellant’s Brief at 35. Given this deficiency, we
deny Appellant’s petition for allowance to appeal the discretionary aspects of
his sentence.9 Penrod, 578 A.2d at 490.
Finally, we address the trial court’s designation of Appellant as a Tier
III sexual offender under the Sex Offender Registration and Notification Act
(“SORNA”), 42 Pa.C.S. §§ 9799.10–9799.41. N.T., 6/16/15, at 29. In light
of the Supreme Court’s recent decision in Commonwealth v. Lutz-
Morrison, 143 A.3d 891 (Pa. 2016), this ruling presents a non-waivable
legality-of-sentence issue. According to the Lutz-Morrison Court, SORNA
implicates the recidivist philosophy, requiring an action, a conviction, and a
subsequent act to trigger lifetime registration for multiple offenses otherwise
subject to a fifteen- or twenty-five-year registration period. Lutz-Morrison,
143 A.3d at 895. Because Appellant is a first-time offender, we are
constrained to vacate the lifetime registration portion of Appellant’s sentence
and remand for re-sentencing under SORNA.
Convictions affirmed; judgment of sentence vacated in part; case
remanded for re-sentencing. Jurisdiction relinquished.
____________________________________________
9
Even if we overlooked Appellant’s defective Pa.R.A.P. 2119(f) statement,
we would dispose of his sentencing challenges by adopting the well-reasoned
analysis of the trial court. Trial Court Opinion, 1/19/16, at 42–46.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/2017
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