Commonwealth v. Diodoro , 2007 Pa. Super. 256 ( 2007 )

OPINION BY

STEVENS, J.:

¶ 1 This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Delaware County on May 23, 2005, following Appellant’s conviction by a jury of thirty (30) counts of sexual abuse of children for possessing child pornography¹ and one (1) count of criminal use of a communication facility.² In this case of first impression, Appellant challenges the sufficiency of the evidence in support of the jury verdicts. We affirm the judgment of sentence.

¶2 On or about November 20, 2003, pursuant to a search warrant for Appellant’s personal computer, members of the Ridley Township Police Department seized the computer from Appellant’s residence. Following forensic examination of the computer, it was found to contain three hundred seventy (370) photographs of suspected child pornography, thirty (30) of which were known to be child pornography. Appellant was arrested and charged with the aforementioned offenses and, following a jury trial, was convicted thereof. On May 23, 2005, Appellant was sentenced, inter alia, to an aggregate nine (9) to twenty-three (23) month term of imprisonment, to be followed by a five (5) year term of probation. Appellant filed an appeal challenging the sufficiency of the evidence.

¶ 3 On November 2, 2006, a panel of this Court issued an opinion in which it found that the evidence was insufficient to sustain his conviction for knowing possession of child pornography under 18 Pa.C.S.A. § 6312(d) and criminal use of a communication facility under 18 Pa.C.S.A. § 7512(a). The Commonwealth filed a timely application for en banc reargument, which was granted on January 10, 2007, and the November 2, 2006 opinion was then withdrawn. We now affirm the judgment of sentence.

¶ 4 As to a challenge to the sufficiency of the evidence, we must determine:

whether the evidence at trial, and all reasonable inferences derived therefrom, when viewed in the light most favorable to the Commonwealth as ver-diet[-]winner, are sufficient to establish all elements of the offense beyond a reasonable doubt. We may not weigh the evidence or substitute our judgment for that of the fact-finder. Additionally, the evidence at trial need not preclude every possibility of innocence, and the fact-finder is free to resolve any doubts regarding a defendant’s guilt unless the evidence is so weak and inconclusive that as a matter of law no facts supporting a finding of guilt may be drawn. The fact-finder, when evaluating the credibility and weight of the evidence, is free to believe all, part, or none of the evidence.

Commonwealth v. Stevenson, 894 A.2d 759, 773 (Pa.Super.2006) (citations and quotations omitted).

¶ 5 Pursuant to 18 Pa.C.SA. § 6312, Sexual Abuse of Children, subsection 6312(d), Possession of Child Pornography:

Any person who knowingly possesses or controls any book, magazine, pamphlet, slide, 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 is guilty of a felony of the third degree.

18 Pa.C.S.A. § 6312(d) (emphasis added).

¶ 6 Criminal use of a communication facility is defined in 18 Pa.C.S.A. § 7512, which provides that:

A person commits a felony of the third degree if that person uses a communication facility to commit, cause or facilitate the commission or the attempt thereof of any crime which constitutes a felony under this title....

18 Pa.C.S.A. § 7512(a).

¶ 7 With regard to § 6312, the Commonwealth must prove the following three (3) elements beyond a reasonable doubt in order to convict an individual of this offense: there must be a depiction of an actual child engaged in a prohibited sexual act or a simulated sexual act; the child depicted must be under the age of eighteen (18); and the defendant must have knowingly possessed or controlled the depiction. Commonwealth v. Koehler, 914 A.2d 427, 436 (Pa.Super.2006).

¶ 8 At trial, the parties stipulated that: The 30 unlawful images located on the hard drive of [Appellant’s] computer depicted, pictured and showed female children engaged in prohibited sexual acts. Those acts include sexual intercourse, oral sexual intercourse, and lewd exhibition of the genitals.

The second fact is that the 30 unlawful images were viewed by [Appellant] on his computer while he was searching the World Wide Web for images of females under age 16.

N.T. 2/24/05 at 250-251.

¶ 9 Because Appellant admitted to knowingly accessing Web sites containing images of child pornography, and to viewing those images on his computer, the remaining issue before us is whether the evidence proved that Appellant knowingly possessed or controlled the thirty (30) images in question within the purview of § 6312(d). Appellant asserts that he neither saved nor downloaded child pornography, but instead, merely viewed the images. He contends that his actions did not constitute possession of the material pursuant to § 6312(d). He adds that the presence of the pornographic images in the internet cache file, absent evidence that he knew that the images would be automatically saved to that file, did not satisfy the possession dictates of § 6312(d).³ Finally, Appellant claims that his use of a computer to view pornographic images on a Web site, without having knowingly saved or downloaded the images or paid a fee to view the site, did not constitute the crime of criminal use of a communication facility under § 7512.

¶ 10 We focus our discussion and analysis of § 6312 and Appellant’s actions on the term “control,” and, in doing so, we are guided by its ordinary, everyday meaning. Control means, inter alia, “[t]o exercise restraining or directing influence over.... The ability to exercise a restraining or directing influence over something.” Black’s Law Dictionary 329 (6th ed.1990).

¶ 11 Herein, Appellant intentionally sought out and viewed child pornography. His actions of operating the computer mouse, locating the Web sites, opening the sites, displaying the images on his computer screen, and then closing the sites were affirmative steps and corroborated his interest and intent to exercise influence over, and, thereby, control over the child pornography.⁴ Cf. Commonwealth v. Armstead, 452 Pa. 49, 305 A.2d 1 (1973) (A showing that a defendant was aware of the presence of the article that constitutes contraband establishes an intent to exercise control over such contraband): Moreover, further evidence of Appellant’s control over the images was born out by the testimony of Officer Salerno, who stated that the fact that multiple images were stored in the cache files indicates that someone, after accessing the particular Web sites, had to click the “next” button on the screen to view successive images. N.T. 2/24/05 at 230-231. Finally, while Appellant was viewing the pornography, he had the ability to download the images, print them, copy them, or email them to others, which we find is further evidence of control.

¶ 12 The totality of the circumstances was sufficient for the jury to find that Appellant’s conduct of accessing and viewing child pornography over the internet constituted “control” of such pornography under § 6312.⁵ Because the evidence was sufficient to find Appellant guilty of possession of child pornography, the evidence also supported a finding that he was guilty of criminal use of a communication facility.⁶

¶ 13 Based on the foregoing, we affirm the judgment of sentence.

¶ 14 Affirmed.

¶ 15 KLEIN, J., files a dissenting opinion in which BENDER, J. joins.

1 . 18 Pa.C.S.A. § 6312(d).

2 . 18 Pa.C.S.A. § 7512(a).

3 . The Commonwealth presented the testimony of Pennsylvania State Police Officer Peter J. Salerno, a computer forensics expert, who testified, inter alia, that when a Web site is viewed, the image is automatically saved to an internet cache file. N.T. 2/24/05 at 248-249. Temporary internet files are stored in the cache, “a storage mechanism designed to speed up the loading of internet displays.” 19 Berkeley Tech LJ. 1227, 1229 (Fall 2004).

4 . We note that determining whether an individual sought and controlled pornographic -images of children recognizes and promotes the purposes behind such statutes; namely, the destruction of the market for the exploitative use of children, Osborne v. Ohio, 495 U.S. 103, 109, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990), and, in turn, the protection of the physical and psychological well-being of children. New York v. Ferber, 458 U.S. 747, 756, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982).

5 . Having determined that Appellant controlled the pornographic images in question, we need not reach the issue of whether his actions of accessing and viewing the images constituted possession thereof.

6 . As indicated above, it was stipulated that Appellant viewed the unlawful images on his computer.