Com. v. Hartman, W. ( 2017 )

J-S13035-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
WILLIAM F. HARTMAN
Appellant No. 156 EDA 2016
Appeal from the Judgment of Sentence December 7, 2015
in the Court of Common Pleas of Delaware County Criminal Division
at No(s): CP-23-CR-0004506-2014
BEFORE: BENDER, P.J.E., LAZARUS, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JULY 17, 2017
Appellant, William F. Hartman, appeals from the judgment of sentence
entered in the Delaware County Court of Common Pleas following a jury trial
and his convictions for possession of child pornography 1 (four counts) and
criminal use of communication facility2 (one count). Appellant asserts that
his convictions were against the weight of the evidence, and that the trial
court erred by permitting the admission of certain evidence and by imposing
an illegal sentence. We affirm.
We adopt the facts and procedural history as set forth in the trial
court’s opinion. See Trial Ct. Op., 5/16/16, at 1-7. On December 7, 2015,
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 6312(d).
2
18 Pa.C.S. § 7512(a).
J-S13035-17
Appellant was sentenced to a mandatory twenty-five to fifty years’
imprisonment on each of the four counts of child pornography,3 with each
sentence to be served concurrently. In addition, the trial court sentenced
Appellant to an additional twelve to eighteen months’ imprisonment and five
years’ probation on the criminal use of communication facility conviction, to
be served consecutively to the sentence imposed for his child pornography
convictions. On January 6, 2016, Appellant filed the instant timely appeal
and subsequently filed a court-ordered Pa.R.A.P. 1925(b) statement of
errors complained of on appeal. The trial court filed a responsive opinion.
Appellant raises the following issues for our review:
I. Whether the trial court erred in not finding [Appellant’s]
verdict was against the weight of the evidence.
II. Whether the trial court committed errors during the trial
which prejudiced [Appellant] and contributed to his guilty
verdict which requires reversal for new trial.
III. Whether the trial court entered an illegal sentence as
to the minimum mandatory sentence for subsequent
conviction for possession of child pornography in violation
of Alleyne and related cases and further abused its
discretion in sentencing [Appellant] to consecutive time
and probation on an already lengthy sentence.
Appellant’s Brief at 4.4
3
The trial court sentenced Appellant pursuant to 42 Pa.C.S. § 9718.2, which
sets forth a mandatory minimum sentence for any person with a prior
conviction for certain sexual offenses, including child pornography.
4
Appellant’s issues have been reordered for ease of disposition.
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In his first issue, Appellant claims the verdicts were against the weight
of the evidence. He argues that only four photos, out of thousands of
images retrieved from his computer, were indicated to possibly constitute
child pornography and were considered the “lowest category of questionable
or of concern.” Appellant’s Brief at 12. Further, he asserts that others could
easily have accessed his computer, even after the Commonwealth seized it,
and therefore he was not the only person who could have been responsible
for the photos.
In his second issue, Appellant challenges several evidentiary rulings by
the trial court. He avers that the trial court erred by admitting into evidence
a fifth photo, depicting purported child pornography, for which he was not
charged. He contends that the trial court’s decision to allow the jury to learn
about his prior conviction for child pornography constituted error, which
caused him substantial prejudice. Appellant also argues that the trial court
erred by allowing evidence of “unsavory sites” he purportedly accessed via
his computer when the Commonwealth was unable to present any evidence
that the photos at issue were linked to those websites. Lastly, he asserts
that the Commonwealth’s closing argument contained prejudicial and
impermissible comments regarding the prosecutor’s personal belief that
Appellant did not find the photos at issue to be “distasteful.”
Appellant’s third issue concerns challenges to his sentence. He
specifically argues that his sentence was illegal, pursuant to Alleyne v.
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United States, 133 S. Ct. 2151 (2013), due to the mandatory minimum
sentence applied. Further, he argues that he did not receive proper notice
of the Commonwealth’s intention to seek a mandatory minimum sentence.
Moreover, he also argues the sentence reflected a “gross disproportionality”
between his crime, which involved a “mere” four photographs, and his
“extremely lengthy sentence.”
We begin by noting that the weight of the evidence is exclusively for
the finder of fact, who “is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses.” Commonwealth v.
Diggs, 949 A.2d 873, 879 (Pa. 2008). The trial judge may award a new
trial only if the fact finder’s “verdict is so contrary to the evidence as to
shock one’s sense of justice.” Commonwealth v. Rivera, 983 A.2d 1211,
1225 (Pa. 2009) (citations omitted). “[A]ppellate review is limited to
whether the trial judge’s discretion was properly exercised, and relief will
only be granted where the facts and inferences of record disclose a palpable
abuse of discretion.” Commonwealth v. Ratushny, 17 A.3d 1269, 1272
(Pa. Super. 2011) (citation omitted).
The instantly relevant statutory provisions include:
(d) Child pornography.-Any person who intentionally
views or 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 commits an offense.
18 Pa.C.S.A. § 6312(d).
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Further, it is axiomatic that:
[q]uestions regarding the admission of evidence are left to
the sound discretion of the trial court, and we, as an
appellate court, will not disturb the trial court’s rulings
regarding the admissibility of evidence absent an abuse of
that discretion. An abuse of discretion is not merely an
error of judgment; rather, discretion is abused when “the
law is overridden or misapplied, or the judgment exercised
is manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill-will, as shown by the evidence or the
record.”
Commonwealth v. Trinidad, 96 A.3d 1031, 1036 (Pa. Super. 2014)
(quotations and citations omitted).
Generally, “evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action in conformity
therewith.” Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be
admissible “when offered to prove some other relevant fact, such as motive,
opportunity, intent, preparation, plan, knowledge, identity, and absence of
mistake or accident.” Commonwealth v. Ross, 57 A.3d 85, 98 (Pa. Super.
2012) (en banc). Moreover, “[t]he law presumes that the jury will follow the
instructions of the court.” Commonwealth v. Chmiel, 30 A.3d 1111, 1184
(Pa. 2011) (citations omitted).
Regarding Appellant’s sentencing claims, Alleyne does not require
that the fact of a prior conviction be presented at trial and found beyond a
reasonable doubt. Alleyne, 133 S. Ct. at 2160 n.1 (noting, “In
Almendarez–Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140
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L. Ed. 2d 350 (1998), we recognized a narrow exception . . . for the fact of a
prior conviction.”)
In addition, this Court has stated that
discretionary aspects of [an appellant’s] sentence [ ] are
not appealable as of right. Rather, an appellant
challenging the sentencing court’s discretion must invoke
this Court’s jurisdiction by satisfying a four-part test.
We 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.
720; (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).
Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (some
citations omitted).
After careful consideration of the record, the parties’ briefs, and the
thorough and well-reasoned decision of the Honorable James F. Nilon, Jr.,
we affirm on the basis of the trial court’s decision. See Trial Ct. Op. at 8-35
(holding (1) Appellant’s conviction was not against the weight of the
evidence where trial testimony established that the photos at issue
constituted child pornography under Pennsylvania law, it is unlikely any
other persons had access to Appellant’s computer, and a search of
Appellant’s computer revealed 400 “hits” for the words “preteen and “pre
teen” (2) the trial court properly admitted a) a fifth photo in order to
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demonstrate the lewd character of the nudity depicted in the other
photographs as well as Appellant’s intent, b) evidence of Appellant’s prior
conviction for child pornography to impeach Appellant, c) Appellant’s
relevant search history on his computer, and d) the district attorney’s “fair
comment” regarding Appellant’s preferences during closing argument (3)
Appellant’s minimum mandatory sentence, imposed based on a prior
conviction, is not illegal pursuant to Alleyne).5 Accordingly, we affirm the
judgment of sentence.
Judgment of sentence affirmed.
P.J.E. Bender and Judge Lazarus join the memorandum.
Justice Fitzgerald files a concurring statement, which P.J.E. Bender
joins.
5
We note that Appellant failed to properly preserve his excessive sentence
claim either during sentencing or by post-trial motion. See Leatherby, 116
A.3d at 83. Nevertheless, we agree with the trial court that Appellant’s
claim regarding the court’s imposition of a consecutive sentence does not
raise a substantial question in this case. Trial Ct. Op., at 23; See
Commonwealth v. Pass, 914 A.2d 442, 446-47 (Pa. Super. 2006) (holding
Pennsylvania law “affords the sentencing court discretion to impose its
sentence concurrently or consecutively to other sentences being imposed at
the same time or to sentences already imposed. Any challenges to the
exercise of this discretion ordinarily does not raise a substantial question.”)
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/2017
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Circulated 06/28/2017 06:03 PM
COUNTY, PENNSYLVANIA
IN THE COURT OF COMMON PLEAS OF DELAWARE
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
No, 156 EDA 2016
V.
WILLIAM HARTMAN CP-23-CR-0004506-2014
for the Commonwealth of Pennsylvania
Michael Galantino, Esquire, Deputy District Attorney
Karen E. Friel, Esquire, Attorney for the Appellant
OPINION
FILED: 5/16/16
NILON, J.
an appeal from his conviction for the
William Hartman, hereinafter "Appellant," has filed
and Criminal Use of Communication Facility
charges of Possession of Child Pornography (4 counts)
(1 count). The Appellant's arguments are meritless.
Factual History:
counts of Possession of Child Pornography
The Appellant was charged and convicted of four
from his intentional possession and/or
and Criminal Use of Communication Facility stemming
children engaged in prohibited sexual acts and/
control of five images on his computer that depicted
of these images, the Appellant had previously
or sexually explicit poses. At the time of the discovery
entered a guilty plea to nearly identical conduct.
Prior Case: (CP-23-CR-2604-2013):
charges and conduct that he was convicted
The Appellant had a prior conviction for the same
from the Virginia Internet Crimes Against
of in the case sub judice. In August of 2012, a detective
hard drive from the Appellant's estranged
wife.
Children (ICAC) Task Force obtained a computer
1
;ET ViGE BY filiST CI.A83 WAIL
AND
INTEHOFFICE MM.
the defendant and his wife.
This computer hard drive had been used in a shared computer by both
to the Delaware County Criminal
The Virginia ICAC Task Force submitted the hard drive
of more than fifty (50)
Investigation Division (CID). A forensic examination led to the discovery
acts. On November 12, 2013,
images of children under the age of 18 engaged in prohibited sexual
Abuse of Children- Possession
the Appellant entered a negotiated guilty plea to one count of Sexual
Facility. He was sentenced
of Child Pornography and one count of Criminal Use of Communication
to a minimum of six months to 23 months on electronic
home monitoring and a consecutive term of
probation of five years.
Current case:
On December 4, 2013, shortly after the Appellant was sentenced,
the parole agent, Carissa
to ensure that the Appellant
Tillotson, conducted an unannounced check on the Appellant's house
at 29 Delaware Avenue,
was in compliance with the terms of the sentence. The Appellant resided
the Appellant's computer
Ridley Park Borough, Delaware County, Pennsylvania. Upon examining
and images that she believed
and employing scanning software, the parole agent observed websites
conduct. She seized the computer and
may pertain to and depict minors involved in sexually explicit
Kelly of CID. Sgt. Kelly
turned it over to CID detectives. Parole officer Tillotson notified Sgt. Jack
was turned over to the CID
obtained a search warrant for the Appellant's computer. The computer
examination of this computer
computer forensics unit for processing and analysis. A forensic
under the age of 18 engaged in
confirmed that it contained inter alia, five images of children
prohibited sexual acts.
2
Procedural History:
the Appellant was charged with
After the December 4, 2013 check of Appellant's computer,
Child Pornography' (4 counts) and Criminal
the crimes of: Sexual Abuse of Children- Possession of
On August 20, 2014, the Informations were filed
against the
Use of Communication Facility 2.
by Magistrate Jack D. Lippart in
Appellant. On July 21, 2014, a Preliminary Hearing was conducted
was held on the above charges. On
Prospect Park, Pennsylvania District Court and the Appellant
Entry of Appearance on behalf of the
August 20, 2014, Joseph A. Malley, Esquire, filed an
for Leave to Withdraw as Counsel and it
Appellant. On October 3, 2014, Mr. Malley filed a Petition
20, 2015, an order was entered
was granted by order dated December 29, 2014. On February
Appellant at trial. On March 6, 2015, an
appointing Mr. Douglas L. Smith, Esquire, to represent the
11, 2015, the Court ordered that after
omnibus pretrial motion was filed by the Appellant. On August
a review of CYS records, the redacted CYS records were provided to both parties.
to Admit Evidence under Pa.R.E.
On May 27, 2015 the Commonwealth filed a "Motion
8, 2015, it was denied. However, the
404(b)". A hearing was held on the Motion and on September
door" at trial, the prior conviction may be
court clarified in the order that if the Appellant "opens the
by the Appellant or his witnesses. (See
admitted into evidence to rebut any false inferences raised
order filed September 9, 2015).
in Limine" seeking to prohibit the
On August 26, 2015, the Appellant filed a "Motion
prior conviction and the home visit by
Commonwealth from introducing evidence of the Appellant's
or the alleged images were a violation of his
the parole officer and that the possession of a computer
the court ordered that the Motion was
supervision. After a hearing held on September 8, 2015,
the Motion in that the Commonwealth was
granted in part and denied in part. The court granted
18 Pa.C.S. § 6312(d)
218 Pa.C.S. § 7512(a)
3
prevented from presenting testimony that the computer in question was seized during the home visit
by members of the probation and parole office as this information would be prejudicial and denied
the Defendant his presumption of innocence. However, the Motion was denied in part, in that the
Commonwealth was allowed to illicit testimony that the Appellant was under court supervision at
the time of the seizure of the computer. This information aided the jury in understanding why a
parole officer was in the Appellant's home at the time of the alleged crime. To rule otherwise, would
mislead the jury to conclude that the Commonwealth was conducting an illegal search and seizure. A
"sanitized" version of the relevant facts removed the prejudice to the Appellant.
Further, count two of Appellant's Motion in Limine was denied. The criminal complaint filed
in this matter alleged the Defendant viewed and possessed nine images of child pornography. After
hearing testimony at the District Court level, the District Justice determined that four images
constituted sufficient evidence of possession of child pornography. The Commonwealth filed an
information charging the defendant with the four counts of the alleged possession of child
pornography and one count of criminal use of communication facility. The Appellant sought to
prohibit the Commonwealth from soliciting testimony or introducing evidence of the alleged images
of child pornography that were not part of the substance of the four counts of possession of child
pornography.
The court found the Commonwealth's argument compelling as to the fifth image and it was
deemed to be admissible at trial. The fifth image depicts a child fully clothed but clearly performing
a sexual act. The Commonwealth outlined that the four charged images are lewd exhibitions,
whereas the fifth image depicts a child engaged in a sexual act. The Commonwealth argued that this
image was needed in order to prove an element of the crime charged namely child pornography. The
4
was permitted. (See
fifth image provided evidence of the intent element of the crime charged and
order filed September 9, 2015) (see discussion infra at 3B).
Trial. He was found
On September 10, 2015, Appellant was convicted after a two-day Jury
and Criminal Use of
Guilty of all charges: Sexual Abuse of Children -Child Pornography3 (4 counts)
Communication Facility (1 count). 4 Prior to sentencing, the court ordered a County Pre -Sentence
to sentencing, the
Investigative Report and psychosexual evaluation. (N.T. 9/10/15 p.183). Prior
counts one through four
Commonwealth notified the Appellant pursuant to 42 P.S. 9795.3 that
because of the
involve a mandatory 25 -year minimum sentence pursuant to the recidivist statute
sentence that
Appellant's prior conviction for Possession of Child Pornography, and so the minimum
the court could impose was 25 to 50 years SCI. (N.T. 12/7/15 p.4).
Sexual Abuse of
On December 7, 2015, Appellant was sentenced as follows: Count
1,
provide a DNA
Children- Possession of Child Pornography, 25 to 50 years SCI, no RRRI eligibility,
SCI, concurrent to
sample; Count 2, Sexual Abuse of Children -Child Pornography, 25 to 50 years
SCI, concurrent to
Count 1; Count 3, Sexual Abuse of Children -Child Pornography, 25 to 50 years
to 50 years SCI,
Counts 1 and 2; Count 4, Sexual Abuse of Children -Child Pornography, 25
Facility, 12 to 24 months
concurrent to Counts 1,2 and 3; Count 5, Criminal Use of Communication
SCI to run consecutive to counts 1 through 4; five years consecutive state probation supervision by
Law registration, credit
the sex offender unit special rules regarding sex offenders; Lifetime Megan's
to be destroyed pending
time to be determined by the State Board; computer and storage media not
the outcome of all the Appellant's appeals. (N. T. 12/7/15 pp.19-20).
On January 6, 2016, Appellant filed a timely Notice of Appeal to the
Superior Court of Pennsylvania
from his Judgment of Sentence. On February 1, 2016, Appellant filed a "Petition for Enlargement of
3 18 Pa.C.S.§6312(d)
'I 18 Pa.C.S. §75 I 2(a)
5
On
Time to Comply with 1925(b) Statement of Errors Complained of on Appeal". It was granted.
March 3, 2016, the Petitioner, through counsel, filed a "Statement of Matters Complained
of on
Appeal," raising the following issues for appellate review:
1. Defendant's verdict was against the weight of the evidence for the following reasons:
A. There were only 4 photographs found out of thousands of images on this computer.
There was
(NT
testimony as to its "thousands of pages of information" on its 300 gigabyte hard drive.
9/9/15 at 176-177) Further, there was no documentation on the computer with defendant's name
on it or listing him as owner of the computer. In fact the original search by witness Tillotson
documented the owner as SCHMELSEorg;hp and that Windows was installed as far back as
1/1/70 (Id at 86)5;
of the ability of defendant to have inadvertently been directed to child
B. There was evidence
thereon
pornographic cites [sic] from regular adult pornographic cites and/or pop -ups appearing
which appeared in the computer's history.
C. There was clear evidence of the ability of others to have accessed the computer due to the fact
that defendant's house was for sale and realtors and potential buyers had been coining and going
from the residence being shown for sale.
D. The Commonwealth introduced inconsistent, inaccurate and incomplete reports
by witnesses
in
(Id at 82) as well as evidence that Clarissa Tillotson, the initial person viewing the computer
the residence, who did not even see any child pornography thereon. (Id at 88, 91) Witness
Jeff
Roney similarly did not see any evidence of child pornography when he viewed the computer.
"not
(Id at 106) Witness Edmond Pisani testified the computer analyst Evans report documenting
finding": any videos of any apparent child porn, photos of teens and pre -teens involving nudity,
stored or saved child porn websites or photos nor paying for or purchasing child porn. Further,
many images were of his family and children. (Id at 138-146)
E. There was the possibility of tampering and/or changes made to the contents of the
computer
due to the lack of establishing proper storage and chain of custody since its seizure occurred on
on 12/6
12/3/13, no dates and times being on evidence log, first report documenting same made
and application of search warrant being done on 12/18. (Id at 111-116)
F. Witness Det. Mark Bucci testified that out of the 4 categories they analyze for child
pornography cases, the four pictures taken out of the "couple thousand" images on this computer
including family pictures were in the lowest category of "questionable or of concern" and not
in
higher categories of apparent and notable child porn or pictures in the young or mid -adolescent
range. (Id at 35-38). He further elaborates that he does not know what websites
the four pictures
5 The 9/9/15 reference is an invalid cite.
6
came from, what date they were viewed on, nor who viewed them. Id at 58-61. The pictures were
described as being in a "gray area" as well as "grainy." Id at 62- 65.
2. Defendants minimum mandatory sentence of 25 to 50 years was improper due to the jury not
making a factual finding on the verdict slip as to any prior conviction for possession of child
pornography. The trial court also gave an excessive sentence in regard to giving defendant
consecutive time on his secondary offense.
3. The court erred in various evidentiary and trial rulings leading to the introduction of prejudicial
and/or irrelevant evidence as follows:
A. Allowing reference to problematic cites and other locations on the computer and not just
where the actual 4 photographs were found (NT 9/9/15 at 77) as well as testimony on titles of
"teen movies." (Id at 72). Also allowed testimony of Edmond Pisani as to word searches
involving pre -teen which led to "400 hits." Id at 133; On cross examination of defendant, the
DA referenced numerous child pornographic websites which had not been documented or
testified to up to that point nor did prior testimony establish the 4 photos in question were
found or downloaded from these websites nor was he charged with viewing these websites.
Id at 107-110,113
B. Allowing the admission and jury viewing of a 5th image which was not child pornography
which prejudiced defendant;
C. Not requiring the Commonwealth to produce the actual computer and images thereon and
also allowing the copy of photos to be shown and admitted without a proper chain of custody
of the computer itself after seizure (Id at 106) nor even establishing an actual date thereon of
when the photos may have been downloaded and/or viewed. Sgt. John Kelly also references
getting the computer from Jeff Roney but that there was no date and time as to when it was
logged into evidence. (Id at 111)
D. The court allowed prejudicial comments to be made by the District Attorney in opening
and closing statements. (NT 9/8/15 at 56-60); (NT 9/9/15 at 146) The DA states his personal
belief in regard to defendant finding the photos not distasteful. Id at 153.
E. The court though previously entering in order to preclude mention of Defendant's prior
conviction for child pornography, allows same in under 404(b) (Id at 118-120) and further
instructs the jury at one point that it may not be used as substantive evidence of guilt and then
re -instructs at the close of trial that they may so use it, confusing the jury in regard to same.
(Id at 122, 165).
7
DISCUSSION:
THE WEIGHT OF THE
I. APPELLANT'S GUILTY VERDICT WAS NOT AGAINST
EVIDENCE
on appeal alleges that the verdict was against the weight
of the
Appellant's first issue raised
evidence for six different reasons.
Standards governing weight of the evidence:
A true and genuine weight of the evidence challenge
"concedes that sufficient evidence
597 A.2d 111, 115 (Pa. Super. 1991) (en
exists to sustain the verdict." Commonwealth v. Murray,
v. Taylor, 471 A.2d 1228,
bane) (Olszewski, J., concurring and dissenting), (citing Commonwealth
an Appellant questions which evidence is
1230 (Pa. Super. 1984)). However, within this admittance,
the testimonial evidence. Armbruster v.
to be believed -thus, in effect, the weight to be accorded
813 A.2d 698 (2002).
Horowitz, 744 A.2d 285, 286 (Pa. Super. 1999) affd, 572 Pa.
1,
as follows:
The standard of review for weight of the evidence challenges is
evidence is addressed to the
An allegation that the verdict is against the weight of the
claim is a review of the
discretion of the trial court. Appellate review of a weight
the verdict is against
exercise of discretion, not of the underlying question of whether
had the opportunity to hear
the weight of the evidence. Because the trial judge has
and see the evidence presented, an appellate court will
give the gravest consideration
to the findings and reasons advanced by the trial judge
when reviewing a trial court's
determination that the verdict is against the weight of the
evidence.
2000); see also, Commonwealth v. Cousar,
Commonwealth v. Widmer 744 A.2d 745, 751-52 (Pa.
928 A.2d 1025, 1036 (Pa. 2007) (a verdict is against
the weight of the evidence only when the
sense of justice). The weight given to the
verdict is so contrary to the evidence as to shock one's
the factfinder. Commonwealth v. West, 937
direct and circumstantial evidence at trial is a choice for
A.2d 516, 521 (Pa. Super. 2007).
is not only a "trial court's inherent
The Superior Court has often emphasized that it
a new trial when it believes the verdict was
fundamental and salutary power, but its duty to grant
8
185
against the weight of the evidence and resulted in a miscarriage of justice." Frisina v. Stanley,
in testimony
A.2d 580, 581 (Pa. 1962). A new trial should not be granted because of mere conflict
or because a court on the same facts would have arrived at a different conclusion.
Thompson v. City
of Philadelphia, 493 A.2d 669, 672 (Pa. 1985). A new trial should only be "awarded when the jury's
verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new
trial is
v. 1818 Market
imperative so that right may be given another opportunity to prevail." Mammoccio
Partnership, 734 A.2d 23, 28 (Pa. Super. 1999).
of an appellate court to give the gravest consideration to the findings and
It is the duty
reverse the
reasons advanced by the trial judge. See Widmer, supra. A reviewing court "will not
denial of a new trial, unless there was a clear abuse of discretion or an error of law which
controlled
1994). "One
the outcome of the case...." Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa. Super.
of the least assailable reasons for granting [or denying] a new trial is the lower court's conviction that
was [or was
the verdict was [or was not] against the weight of the evidence and that new process
in the record,
not] dictated by the interests of justice. With reasons for this action given or appearing
In
only a palpable abuse of discretion will cause us to overturn the court's action." Id. at 1189-90.
determining whether or not the grant of a new trial constituted an abuse of discretion,
the entire
record must be reviewed. Id. at 1190.
court.
An appellate court by its nature stands on a different plane than that of a trial
aided by an on -the -
Whereas a trial court's decision to grant or deny a new trial is
a cold
scene evaluation of the evidence, an appellate court's review rests solely upon
an appellate court is not
record. Because of this disparity in vantage points
for
empowered to merely substitute its opinion concerning the weight of the evidence
of
that of the trial judge. Rather our court has consistently held that appellate review
the trial court's grant of a new trial is to focus on whether the trial judge has palpably
support in
abused his discretion, as opposed to whether the appellate court can find
the record for the jury's verdict. Id.
9
To determine whether a trial court's decision constituted a palpable abuse
of discretion, an appellate
Id. Where the record
court must "examine the record and assess the weight of the evidence...."
adequately supports the trial court, the trial court has acted within the limits
of its judicial discretion.
Id. In this case, the evidence was of sufficient weight to support the jury's finding of guilt.
the verdict rendered
In the case sub fittlice, the Court finds no merit in Appellant's claim that
was so contrary to the evidence presented as to shock one's sense of
justice. The jury had the
the Commonwealth and
opportunity to observe all the witnesses and evidence presented by both
Appellant during the course of this two-day trial. It was the duty of the factfinder to assess the
pursuant to this duty
credibility of each witness and weigh the evidence presented. Here, the jury
possessed Child
found that the Commonwealth's witnesses testified credibly that Appellant
Pornography and Criminally used a Communication Facility.
When Parole Officer Carissa Tillotson performed her Field Search of the Appellant's
(C-2). The sites
computer, she brought up a list of websites, with names like "illegalpussey.com"
were visited from June 1, 2013 almost continuously until December 2, 2013. Ms. Tillotson found the
they conducted the search.
list of teen movies on his computer that she observed in his history when
He verified what she had
She turned the computer into the supervisor of probation, Mr. Roney.
through Sgt. Kelly, the
found and turned it over to the experts, Detectives Pisani and Walsh,
the Web history,
supervisor with CID. The Appellant's computer had the word "teen" all throughout
found when he searched
with 400 hits for the words "preteen" and "pre teen" that Detective Pisani
to a reasonable degree of
Appellant's computer. (N.T. 9/9/15 p.133). Finally, Dr. Messum testified
children. They were minors. The
medical certainty that the five images shown to the jury were
found on the Appellant's
Commonwealth established that the five images in question were
computer. The jury viewed five images and found the Appellant
guilty beyond a reasonable doubt
10
in its final instructions for the
that he possessed images that fit the definition that the court provided
undisturbed.
two crimes charged. Therefore, the jury's determination should be left
the verdict is against the weight of
A trial court should award a new trial on the ground that
the evidence only when the verdict is so contrary to the
evidence as to shock one's sense of justice
and make the award of a new trial imperative so that right
may be given another opportunity to
Cruz-Centeno, 668 A.2d 536 (Pa. Super. 1995); Commonwealth
v.
prevail. Commonwealth v.
not be granted because of a mere
Cousar, 928 A.2d 1025, 1036 (Pa. 2007). A new trial should
facts, would have arrived at a
conflict in the testimony or because the trial judge, on the same
Widmer, supra; Commonwealth v. Vandivner, 962 A.2d
different conclusion. Commonwealth v.
the credibility of the witnesses and
1170, 1178 (Pa. 2009). A trial judge must do more than reassess
a juror, because a trial judge cannot
allege that he would not have assented to the verdict if he were
is to determine that, notwithstanding
sit as the thirteenth juror. Id. Rather, the role of the trial judge
all of the facts, certain facts are so clearly of greater weight, that to ignore them or to give them
See also Commonwealth v Brown,
equal weight with all of the other facts, would deny justice. Id;
648 A.2d 1177 (Pa. 1994). In doing so, the trial court is under
no obligation to view the evidence in
new trial
a light most favorable to the Commonwealth, as the verdict winner, because a motion for a
concedes that there is sufficient
on the grounds that the verdict is against the weight of the evidence
a new trial is reserved only for those
evidence to sustain the verdict. Widmer, supra. The granting of
to the weight of the evidence that it is
extraordinary cases in which the verdict is so contrary
shocking to one's sense of justice. Id.
sufficient to sustain the verdict,
A weight of the evidence claim concedes that the evidence is
was so one-sided or so weighted in favor of
but seeks a new trial on the ground that the evidence
11
v. Lyons, 79 A.3d 1053,
acquittal that a guilty verdict shocks one's sense of justice. Commonwealth
1067 (Pa. 2013).
In reviewing the record in this case, the evidence presented was
straightforward and
beyond a reasonable
compelling. It met the burden of proving all the elements of the crimes charged
the evidence and the Jury did
doubt. The court determines that the verdict was not against the weight
a new trial. Therefore, no new
not render a decision shocking to the conscience, such as to require
that Appellant's claim is
trial should be granted on these grounds. Accordingly, this court concludes
without merit.
1.A. Appellant argues that there were only 4 photographs
found out of thousands of images
of information" on its 300
on this computer. There was testimony as to its "thousands of pages
gigabyte hard drive. (NT 9/9/15 at 176-177)
of images on
Appellant contends that there were only 4 photographs found out of thousands
is exclusively for the finder of fact who is free to
his computer. As noted above, the weight of the evidence
believe all, part, or none of the evidence and to determine the credibility
of the witnesses. An appellate court
cannot substitute its judgment for that of the finder of fact thus, we may only reverse the lower court's verdict if
evidence as to shock one's sense justice. Conunonivealth v. Kint, 888 A.2d 847, 851 (Pa.
it is so contrary to the
It is the function of the jury to pass upon the credibility of the
witnesses and to
Super. 2005).
Guest, 456 A.2d
determine the weight to be accorded the evidence produced. Commonwealth
v.
1345, 1347 (Pa. 1983).
Possession of Child
The jury found that the 4 images met the legal definition of
was sufficient to sustain the
Pornography. A weight of the evidence claim concedes that the evidence
the jury to convict him based upon
verdict. Appellant appears to be suggesting that it was error for
is specious at best. The
some analysis of the percentage of images on the computer. This argument
12
based upon 4
court finds that the jury's verdict of guilt as to four counts of Child Pornography
photographs/images was supported by the weight of the evidence.
1.A. Appellant argues that he was not listed as the owner of the computer on the Field
name
Search Report. Further, there was no documentation on the computer with defendant's
Tillotson
on it or listing him as owner of the computer. In fact the original search by witness
documented the owner as SCHNIELSEorg;hp and that Windows was installed as far
back as
1/1/70 (Id at 86)
Appellant contends that the Commonwealth failed to prove that he was the owner
of the
the owner as
computer. He asserts: "the original search by witness Tillotson documented
86)". Legally,
SCHMELSEorg.hp and that Windows was installed as far back as 1/1/70 (Id at
was charged
whether Appellant was the owner of the computer is of no consequence. The Appellant
with 18 P.S.§ 6312- Possession of Child Pornography, which requires
knowingly possessing or
own the
controlling child pornography, there is no requirement in the statute that the Appellant
computer.
In addition, Appellant's assertion that there was evidence of another owner of the computer
by Probation Officer
is factually incorrect. The Field Search Report, Exhibit C-2, that was generated
fails to fully
Carissa Tillotson had markings on it in the upper right hand corner. The Appellant
reference all of the information at the top of C-2. It provides: "ProductID [the
product being the
Date:
Commonwealth's search software]: Owner: sclunelse, Organization: HP Windows Installed
1/1/1970 12:00 AM".
for "Field
The information referenced in the upper right hand corner relates to the software company
itself but to
Search" that Ms. Tillotson used. (N.T. 9/9/15 p.72). The reference is not to the computer
computer. When
the software that the Commonwealth used to conduct the search of the Appellant's
cross-examination, Ms.
questioned about the information in the upper right hand corner of C-2 on
Tillotson explained:
13
Q. Okay. Now a little way down it says owner;, do
you see that?
Q. Who is the owner of that computer?
A. This is something that's generated from the software
that is not specifically geared
toward each computer...
by the Field Search
A. Again, this is something that is just standard generated
software itself.
(N.T. 9/9/15 p.86).
agrees on cross-examination
Ultimately, that information is of no moment as the Appellant
is his. "Q. And when they took that
that the computer seized from his home by the probation officers
receipt -did the information on the receipt
device from you and they gave you the receipt did the
p.105).
match the information on the device? A. Yes." (N.T. 9/10/15
directed to child
113. Appellant argues that evidence existed that Appellant was inadvertently
pornographic cites from regular adult cites [sic]
that he had viewed adult
The Appellant admitted to his Probation Officer, Mr. Taylor,
p.7). He also admitted viewing
pornography while on probation for his first offense. (N.T. 9/10/15
p.113). However, there was no evidence
adult pornography on cross examination. (N.T. 9/10/15
to child pornographic sites from
before the court that the Appellant was "inadvertently directed"
regular adult sites.
Walsh, testified:
The Commonwealth's computer forensic expert, Mr. Joseph
to click on the banner ad in
[i]f a banner ad appears on a website the user would have
that website would it actually
order to go to that website. And only when they go to
URL's that were actually
appear in visited sites. So visited sites are websites or
requested by the computer...
in the Field Search Report would be sites that
(N.T. 9/10/15 p.21). Therefore, the only sites listed
were actually visited not banner ads or popups etc.
that he was never inadvertently
In addition, the Appellant admitted on cross-examination
sites. "Q. You heard your attorney question
directed to child pornographic sites from regular adult
14
the two experts that I presented, Detectives Pisani and Walsh, about ads, and popups, and things that
come up when you click certain things? A. Sure. Q. Did that ever happen to you? A. No No." (NJ.
9/10/15 p.111).
IC. There was no clear evidence of the ability of others to have accessed the computer
The Appellant asserts that "there was clear evidence of the ability of others to have accessed
the computer due to the fact that defendant's house was for sale and realtors and potential buyers had
been coming and going from the residence being shown for sale." The Appellant does not point to
any evidence of the ability of others to access his computer.
The Appellant's assertions are vague and overly broad and no specific questions are raised
for appeal. Whenever a trial court orders an Appellant to file a concise statement of errors
complained of on appeal pursuant to Rule 1925(b), any issue not raised in an Appellant's Rule
1925(b) statement will be deemed waived for purposes of appellate review. Hess v. Fox Rothschild,
LLP, 925 A.2d 798, 803 (Pa. Super. 2007). If a Pa.R.A.P. Rule 1925(b) statement is too vague, the
trial judge may find waiver and disregard any argument. Pa.R.A.P. 1925(b)(4)(ii). See also,
Lineburger v. Wyeth, 894 A.2d 141 (Pa. Super. 2006). Therefore, 1C should be waived.
Assuming arguendo that there is no waiver, Appellant argues that others had access to his
computer because the house was for sale and there was a lockbox on the front door and the realtor
had access from July 2014 until February 2015. He asserts that somebody could have come in his
home from the lockbox, logged on to his computer, and viewed child pornography. However, the
Commonwealth's Attorney questioned the Appellant about the ability of others to access his
computer due to the fact that his house was for sale at this time. He admitted he lived alone. (N.T.
9/10/15 p.105). He would have been home 24/7, beginning on November 12, 2013, because he was
15
serving his minimum sentence for a guilty plea entered (for Child Pornography and Criminal use of a
Communication Facility) on electric home monitoring. When cross-examined about the Field Search
Report completed by Ms. Tillotson, C-2, which indicated child pornography sites were viewed on
November 8, 2013 at 3:28 AM, he admitted "I was probably home." (N.T. 9/10/15 p.107).
Q. Okay. So the first website that was visited on your computer, 24/7 sexy teens.com
indicates create date November 8, 2013 at 3:28 a.m., access date the same date and
time. Do you see that?
A. Yeah. Sure.
Q. Are you suggesting that somebody came in through the lockbox key was on your
computer
A. I'm just saying that I did not do it.
Q. Okay. So if someone else was in your house looking at these websites on your
computer are you suggesting they would've done it on June 2, June 4, June 1--... July
30, October 29, November 21, November 23, November 8, November 27, December
2, August 29? All these various dates people were accessing your computer looking at
child porn?
A. No, sir.
(N.T. 9/10/15 p.108). There is no clear evidence of the ability of others to access the Appellant's
on
computer. On the contrary, the Appellant admits on cross examination that on the dates indicated
the Field Search Report other people were not accessing his computer viewing child porn.
ID. Appellant contends that "the Commonwealth introduced inconsistent, inaccurate and
incomplete reports by witnesses (Id at 82)"
The Appellant argues that the Commonwealth introduced inconsistent, inaccurate and
incomplete reports by witness Clarissa Tillotson and cites to N.T. 9/9/15 p. 82. The only inaccurate
evidence on p. 82 was Ms. Tillotson writing a report after her visit to Appellant's home, and she
indicated the date was December 2, 2013. On cross-examination she admitted that it was a clerical
error and in fact she had visited the Appellant's home on December 3, 2013. This is not a substantive
inaccuracy. In addition, she admits that she never dated her report from the visit to the Appellant's
There is
home. The report was admitted into evidence, without objection, as C-1. (N. T. 9/9/15 p. 91).
16
certainly no requirement that she date her report. This is a frivolous argument and should be
dismissed.
The Appellant's next argument is that Ms. Tillotson "did not even see any child
pornography" on the Appellant's computer. Ms. Tillotson testified that she used a removable thumb
drive device to conduct a compliance check on the Appellant's computer. (N.T. 9/9/15 pp. 72-73).
Exhibit C-2 was the report generated as a result of her search of the computer. It is a summary of the
internet history, As she reviewed the websites in the internet history, they had names like: "24/7 sexy
teens.com", "3daughtersdesires.com", and "allsexy teens.net". Once Ms. Tillotson found the
incriminating list she completed her report and shut down the computer. She transported the
computer to adult probation and parole and stored it in the evidence room. Once stored, other
individuals took it from there to conduct additional investigation upon the computer. (N.T. 9/9/15
pp. 72- 80).
When Ms. Tillotson was asked on cross-examination whether she observed any pictures or
images of child pornography, she replied: "I did not click on any of the internet history simply
because that could possibly re-create a date. So you don't click on the actual internet history." (N.T.
9/9/15 p. 88). So, there was a logical reason why Ms. Tillotson testified that she did not view child
pornography on the computer. She was following protocol and making certain that she did not
tamper with evidence.
As to the assertion that Commonwealth's witness Jeff Roney did not see any evidence of
child pornography, it is a mischaracterization of Mr. Roney's testimony. He testified as to his role in
the investigation of the Appellant's computer:
...My PO's brought me back evidence. I reviewed the computer. Found similar
evidence. Typed some of those websites in, confirmed what they, you know, my
belief was that that computer may have contained child pornography based on what I
17
saw by retyping in those websites onto my computer. At that point I stopped
everything, took the evidence we had and turned it over to the Delaware County
Criminal Investigation Division.
(N.T. 9/9/15 p.105).
As to the assertion that Commonwealth's witness Edmond Pisani testified that there was no
child pornography on the Appellant's computer, again, it is a mischaracterization of his testimony.
Mr. Pisani was admitted, without objection, as an expert in the field of computer forensics
examination. (N.T. 9/9/15 p.124). He testified that the forensic search of Appellant's computer
yielded over 400 hits on the hard drive for the words "preteen" and "pre teen" related to child
pornography websites. (N.T. 9/9/15 p.133-34). Mr. Pisani testified that Computer Analyst Evans did
not find any videos of any apparent child pornography. (N.T. 9/9/15 p.139). The Appellant was not
charged with viewing child pornography videos. Mr. Pisani testified:
Q. when you're doing these hits per preteen and teen, is it fair to say that you found
some non -nude preteens on his-- on the computer?
A. there were some that indicated that that had in the URL. That's correct.
Q. Okay. And what do you characterize as preteen?
A. anything under the age of 13.
Q. okay. And did you find any nudity under the age of 13 in your search?
A. we didn't find any apparently child pornography, correct. [sic]
(N.T. 9/9/15 p.141). In summary, his testimony was that there was no nudity of children under the
age of 13. In addition, Mr. Pisani testified that there were no separate files on the computer created
to view child pornography. (N.T. 9/9/15 p.144), Again, this is of no consequence as the Appellant
was charged as to five images admitted into evidence as C-9, C-10, C-11, C-13 and C-14. (N.T.
9/10/15 p.49, 80).
18
1E. Appellant contends that there was the possibility of tampering and/or changes made to the
contents of the computer due to the lack of establishing proper storage and chain of custody
since its seizure occurred on 12/3/13, no dates and times being on evidence log, first report
documenting same made on 12/6 and application of search warrant being done on 12/18. (Id at
111-116)
Appellant cites to the testimony of Sgt. John Kelly, a detective sergeant with the Criminal
Investigation Division, and claims there was a lack of establishing proper storage and chain of
custody. To the contrary, Sgt. Kelly outlines proper storage and chain of custody. Sgt. Kelly testified
that C-3 is the document that indicates the date and time that the laptop was provided to him, which
was on December 6, 2013. (N.T. 9/915 p.112). Once he received the computer, he placed it into
evidence and started to make application for a search warrant so that the forensic examiners could
search the computer and do a forensic exam on it. As part of preparing the search warrant, Sgt. Kelly
reviewed the report provided to him by Ms. Tillotson containing the details of what she saw and then
what was confirmed by Mr. Roney.
Sgt. Kelly obtained a search warrant. Then, he arranged for the laptop to be transferred to the
forensic lab to be examined by one or more experts in computer forensics. This was done all within
the confines of the Delaware County Criminal Investigation Division. Sgt. Kelly also testified that he
did not do anything to the laptop that in any way would have changed, altered, or added anything to
it. He placed the computer in the locked "icat" file cabinet, to which he had the key. He testified that
the laptop was in his possession from when it came from Mr. Roney until he turned it over to the
forensic examiners and testified that nothing at all was done to the laptop. (N.T. 9/915 pp.111-116).
There is nothing in the cited testimony that indicates the possibility of tampering and/or
changes made to the contents of the computer. While the Commonwealth bears the burden of
demonstrating some reasonable connection beriveen the proffered exhibits and the true evidence,
Commonwealth v. Pedano, 266 Pa. Super. 461, 467, 405 A.2d 525, 528 (1979), it need not establish
19
the sanctity of its exhibits beyond a moral certainty. E.g., Commonwealth v. Miller, 234 Pa. Super.
146, 155, 339 A.2d 573, 578 (1975), affd, 469 Pa. 24, 364 A.2d 886 (1976).
Physical evidence may be admitted at trial without the Commonwealth demonstrating to an
absolute certainty the precise chain of custody. Commonwealth v. (guiltier, 604 A.2d 1090 (Pa.
Super. 1992).
The Commonwealth need not produce every individual who came into contact with an item
of evidence, nor must it eliminate every hypothetical possibility of tampering. Commonwealth v.
Rick, 244 Pa. Super. 33, 38, 366 A.2d 302, 304 (1976).
A complete chain of custody is not required so long as the Commonwealth's
evidence, direct and circumstantial, establishes a reasonable inference that the
identity and condition of the exhibits have remained the same from the time they
were first received until the time of trial.
Commonwealth v. Oates, 269 Pa. Super. 157, 163, 409 A.2d 112, 115 (1979)(emphasis added);
Commonwealth v. Miller, supra. The law is clear that physical evidence may be properly admitted
despite gaps in testimony regarding its custody. Any gaps in testimony regarding the chain of
custody go to the weight to be given the testimony, not to its admissibility. Commonwealth v.
Bolden, 406 A.2d 333, 335-36 (Pa. 1979). Commonwealth v. Cugnini, 452 A.2d 1064, 1065 (Pa.
Super. 1982).
Sgt. Kelly's testimony, and the Commonwealth's Exhibits related to chain of custody, were
sufficient to allow a fact finder to infer that the evidence seized was not altered or tampered -with
during the period of time from the seizure through the time of trial. Moreover, Sgt. Kelly's testimony
established an unbroken chain of custody from the time the computer was seized by the probation
officers, through obtaining a search warrant, examination by the forensic examiners, until the time of
trial. As such, Appellant's claim is meritless.
20
11'. Appellant contends that Detective Bucci testified that out of the 4 categories they analyze
for child pornography cases, the four pictures were in the lowest category of "questionable or
of concern" and not in higher categories of apparent and notable child porn or pictures in the
young or mid -adolescent range.
The Commonwealth's witness, Detective Mark Bucci, of the Delaware County Criminal
Investigation Division, testified that of the images of nude young people extracted from the
Appellant's computer, a pediatrician was employed to look at those images, and determined that five
of the images were of children. (N.T. 9/10/15 p.38). Detective Bucci testified that he did not do the
analysis "as far as what website they came from." He explained:
...in order to be able to do that forensic unit to employ whatever
it would take the
tools they have to be able to go further into the examination of the computer. From
what I understand, the photos that were recovered were photos that had been deleted
from the hard drive or from they were deleted from the file. They were still on the
hardrive.
(N.T. 9109/15 p.59). The Detective testified on cross-examination that graininess is caused by
"pixilation of the image", and also by expanding the image too much. (N.T. 9/9/15 p.65).
Ultimately, the jury convicted the Appellant of Child Pornography and Criminal Use of a
Communication Facility based upon a medical expert's testimony that the five images were of
children. Dr. Mess= testified to a reasonable degree of medical certainty: "[m]y medical opinion is
that all 5 of the children in these photographs are under the age of 18". (N.T. 9/10/15 p.70. It is of
no consequence that the Detective testified that these 5 photos were in the lowest category of
"questionable or of concern" and not in higher categories of apparent and notable child porn.
2A. Appellant contends that the mandatory minimum sentence of 25 to 50 years was
improper due to the jury not making a factual finding on the verdict slip as to any prim
conviction for possession of child pornography.
The Appellant was sentenced pursuant to 42 Pa.C.S.§ 9718.2, which provides in pertinent
part:
21
(a) Mandatory sentence. --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...
The United States Supreme Court in Alleyne v. United States, U.S. , 133 S.Ct. 2151,
L.Ed.2d 314 (2013), held that any facts leading to an increase in
2155, 186
a mandatory minimum sentence are elements of the crime and must be presented to a jury and
proven beyond a reasonable doubt. However, in Almendarez-Torres v. United States, 523 U.S. 224,
118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Supreme Court stated that the fact of a prior
conviction does not need to be submitted to a jury and found beyond a reasonable doubt. Id. at
1232. (emphasis added). The Alleyne Court explicitly noted that Almendarez-Torres
remains good
law, and is a narrow exception to the holding of Alleyne. See Alleyne, 133 S.Ct. at 2160
n. 1.
Therefore, as the law currently stands, the imposition of a mandatory minimum sentence based
on a
prior conviction is not unconstitutional. Commonwealth v. Pennybaker, 121 A.3d 530, 534 (Pa.
Super. 2015).
Here, the Jury did not need to make a factual finding on the verdict slip as to Appellant's
prior conviction for Possession of Child Pornography and Criminal Use of a Communication
prior
Facility. The Commonwealth handed up a Stipulation (Exhibit C-15) evidencing Appellant's
conviction of the two charges on November 12, 2013. (N.T. 9/10/15 p.121). Moreover, as the
Pennsylvania Supreme Court noted in Commonwealth v. Gordon, 942 A.2d 174, 183 (Pa. 2007)
since
where the judicial finding is the fact of a prior conviction, submission to a jury is unnecessary,
22
the prior conviction is an objective fact that initially was cloaked in all the constitutional safeguards,
and is now a matter of public record. Id.2B. Appellant also contends that the trial court gave an excessive sentence in regard to giving
Appellant consecutive time on his secondary offense.
Appellant also contends that the court gave him an excessive sentence. Sentencing is a matter
vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. Commonwealth v. Mastromarino, 2 A.3d 581, 589 (Pa. Super.
2010). Generally, Pennsylvania law affords the sentencing court discretion to impose
its sentence concurrently or consecutively to other sentences being imposed at the same time or
to sentences already imposed. Any challenge to the exercise of this discretion ordinarily does not
raise a substantial question. Commonwealth V. Frisk, 13 A.3d 526, 533 (Pa. Super.
2011). See Commonwealth v. 1-kag, 445 Pa. Super. 455, 665 A.2d 1212 (1995) (stating an Appellant
is not entitled to a "volume discount" for his crimes by having all sentences run concurrently).
The Appellant was sentenced to Count 1, Sexual Abuse of Children -Possession of Child
Pornography, 25 to 50 years SCI, with the remaining three counts running concurrent to one another;
and as to Count 5, Criminal Use of Communication Facility, 12 to 24 months SCI, to run
consecutive to counts 1 through 4. The Criminal Use of Communication Facility is a different crime
and does not merge. The court acted well within its discretion. Appellant's argument is meritless.
3. Appellant contends that the court erred in various evidentiary and trial rulings leading to
the introduction of prejudicial and/or irrelevant evidence as follows:
A. Allowing reference to problematic cites [sic] and other locations on the computer and
not just where the actual 4 photographs were found (N.T. 9/9/15 at p.77) as well as
testimony on titles of "teen movies." (Id at 72). Also allowed testimony of Edmond
Pisani as to word searches involving pre -teen which led to "400 hits" Id at 133; On
cross examination of defendant, the DA referenced numerous child pornographic
websites which had not been documented or testified to up to that point nor did prior
23
testimony establish the 4 photos in question were found or downloaded from these
websites nor was he charged with viewing these websites. Id at 107-110,113
To preserve a claim of error for appellate review, a party must make a specific objection to
the alleged error before the trial court in a timely fashion and at the appropriate stage of the
proceedings; failure to raise an objection results in waiver of the underlying issue on appeal.
Commonwealth v. Charleston, 16 A.3d 505 (Pa. Super. 2011). Defendant's failure to raise a
contemporaneous objection to evidence at trial waives such a claim on appeal. See Pa.R.Crim.P.
302(a); see also Commonwealth v. Bryant, 855 A.2d 726, 741 (Pa. 2004) (failure to raise
contemporaneous objection to evidence at trial waives claim on appeal).
In the case sub judice, Appellant failed to preserve this claim for appeal as he did not object
to the witness' statements at trial and raises this argument for the first time on appeal. See Pa.R.A,P.
302(a) (stating "issues not raised in trial court are waived and cannot be raised for first time on
appeal"). Accordingly, this argument is waived. Id., Commonwealth v. Sandusky, 77 A.3d 663, 670
(Pa. Super. 2013) (noting that "[e]ven where a defendant objects to specific conduct, the failure to
request a remedy such as a mistrial or curative instruction is sufficient to constitute waiver").
Moreover, defense counsel would have had no basis for an objection to testimony about the
list of visited sites which resulted from the Probation Officer's Field Search Report. The Field Search
Report was admitted into evidence without objection as C-2. (N.T. 9/9/15 p.91). The Probation
Officer testified that C-2 was the report that was generated as a result of her search of the Appellant's
computer. It is a summary of the internet history that was on the Appellant's computer. (N.T. 9/9/15
p.76). The Field Search Report is part of the history, of the case as testified to by the Probation
Officer, Ms. Tillotson. (N.T. 9/9/15 pp.71-81).
24
Appellant also objects to the District Attorney cross-examining him about websites that the
Commonwealth's witnesses testified to, which were part of the internet history of the Appellant's
computer. The Appellant cites to the following questioning:
Q. Okay. So the first website that was visited on your computer, 24/7sexy teens.com
indicates create date November 8, 2013 at 3:28 a.m., access date the same date and
time. Do you see that?...
(N.T. 9/10/15 p.107). The Deputy District Attorney also asks him about another site
"babesideal
was
teens.com". Again, these references are from Exhibit C-2, the Field Search Report, which
downloaded from the Appellant's computer. (N.T. 9/9/15 p.76).
Appellant contends that the references to "problematic cites [sic]", as quoted above, "had not
been documented or testified to up to that point". This assertion is patently false. Ms. Tillotson
history,
testified that these "problematic" sites were downloaded from the Appellant's computer's
(N.T. 9/9/15 p.76). The Appellant's attorney cross-examined Ms. Tillotson about the child
pornographic websites in C-2:
Q. Okay. And when you have these sites and let's go to-- let's just start with number
1, 24/7sexyteens.com, it says it was created and accessed on 11/8/2013
and then
there's a time attached to it, correct?
A. Yes.
Q. And each one of these 85 different sites that you have on here, they all
have a
time, a date for both created and accessed, correct?
A. Correct.
Q. Okay. Do you have any direct knowledge who created and accessed those
sites at
the time and date as specified in your Field Search report?
A. I can't testify to that.
(N.T. 9/9/15 p.88).
In addition to Ms. Tillotson's testimony, the defense attorney cross-examined the
cross-
Commonwealth's forensic witness about these "problematic" sites. Mr. Smith, Esquire,
examined the Commonwealth's witness, Detective Bucci as follows:
Q. All right. Detective Bucci, you've seen this document before, C-2?
25
A. Yes.
Q. And that's the Field Search Report that Carissa Tillotson prepared when she did
her field search on December 3, 2013
A. Okay.
Q. -correct?
A. Yes.
Q. And it lists-- it's titled here visited sites and it lists some 85 sites. And some of
them clearly have the name or the word teen, or daughter, or something to that effect,
right? There's a number of those site[s] among the 85, correct?
A. Yes.
Q. Can you testify that any of those five pictures, any of those five images, came
from any of the sites that are listed on C-2?
A. No, I'm not able to testify to that. I did not do that analysis.
(N.T. 9/10/15 pp.58-59). This testimony is from the cross-examination by Appellant's attorney of the
Commonwealth's witness. A prosecutor may make fair comment on admitted evidence and may
provide fair rebuttal to defense arguments. Commonwealth v. Spatz, 616 Pa. 164, 47 A.3d 63, 97
(2012); Cont. v. Sanchez, 82 A.3d 943, 981 (Pa. 2013).
It is fair rebuttal that issues raised by the defense can be asked by the Commonwealth on
cross-examination of the Appellant. Further, the Commonwealth is allowed to rebut the inference the
Appellant's counsel created through this cross-examination, that the Appellant never accessed the
"problematic" sites documented in C-2. Therefore, the Commonwealth had the right to ask the
Appellant about the numerous child pornographic websites on his computer.
The prosecutor's questions represented a fair response to a defense tactic of portraying
Appellant as someone who never accessed the "problematic" pornographic sites. The prosecutor's
questions about the child pornography websites further served as rebuttal evidence that called into
question Appellant's honesty as a testifying witness. Such impeachment use is clearly allowed and
such fair response use is clearly permissible. Commonwealth v. Bolus, 680 A.2d 839 (Pa. 1996)
(holding prosecutor may impeach a defendant's credibility); Commonwealth v. DiNicola, 866 A.2d
26329 (Pa. 2005) (holding prosecutor may respond to defense attempts to impugn the thoroughness of
the investigation by revealing defendant's lack of cooperation with the investigation).
Therefore, Appellant's objections are unfounded, and should be dismissed.
B. Appellant contends that the court erred in "allowing the admission and jury viewing of a
5th image which was not child pornography which prejudiced defendant"
In reviewing a challenge to the admissibility of evidence, we note that such matters are
within the sound discretion of the trial court and thus, we "will reverse the trial court's decision only
if the appellant sustains the heavy burden to show that the trial court has abused its
discretion." Commonwealth v. Christine, 125 A.3d 394, 398 (Pa. 2015).
In the case sub judice, the criminal information charged the Appellant with four counts of
Possession of Child Pornography and one count of Criminal Use of a Communication Facility. The
defense did not challenge the four images that the Commonwealth alleged were child pornography,
but there was an objection to a fifth image. (N.T. 9/8/15 p.4). The Appellant filed a Motion in
Limine to prevent the jury from viewing the fifth image, and a Hearing was held on the Motion prior
to trial. (MT. 9/8/15 pp.3-18). The Commonwealth explained that the fifth image depicts a young
girl engaged in an act that doesn't quite meet the statute as a criminal offense but goes to the intent.
The child is clothed but she is doing something which is a sexual act, which demonstrates the intent
element of the other four images. The court requested the Commonwealth to outline the probative
value of the fifth image and the DA replied:
The statute requires that the images be-- that are displayed either be engaged in a
sexual act or a lewd exhibition. Lewd exhibition is defined further by the statute. The
four additional images-- the four images which are clearly counts are... a lewd
exhibition. The fifth image is actually a sex act except no nudity is depicted.
(N.T. 9/8/15 p.6). The child pornography statute provides:
27
(d) Child pornography. --Any person who intentionally views or 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 commits an
offense.
(g) Definitions. --As used in this section, the following words and phrases shall have
the meanings given to them in this subsection:
"Intentionally views." The deliberate, purposeful, voluntary viewing of material
depicting a child under 18 years of age engaging in a prohibited sexual act or in the
simulation of such act. The term shall not include the accidental or inadvertent
viewing of such material.
"Prohibited sexual act." Sexual intercourse as defined in section 3101 (relating to
definitions), masturbation, sadism, masochism, bestiality, fellatio, cunnilingus, lewd
exhibition of the genitals or nudity if such nudity is depicted for the purpose of sexual
stimulation or gratification of any person who might view such depiction.
18 Pa.C.S. § 6312.
The statute requires either a lewd exhibition or a sexual act. Nudity alone is not enough. The
Commonwealth alleged the four images were lewd exhibitions and the fifth image depicts a sex act.
Based upon the statutory definition of "intentionally views", the fifth image meets that definition and
was properly deemed admissible to establish the Appellant's intent. (N. T. 9/8/15 p.8).
The court issued a pretrial order dated September 9, 2015, and the undersigned ruled that the
fifth image provided evidence of the intent element of the crime charged. The undersigned noted:
"Mlle court finds the Commonwealth's argument compelling. The fifth image has evidentiary value
and shall be admissible at the time of trial. Further, the court finds that the probative value of the
evidence outweighs any potential prejudicial impact." (Order at number 9). Normally, the general
rule is that testimony is admissible if it is relevant and competent. This basic rule is equally
applicable to the admission of photographs or other types of demonstrative evidence..."
Commonwealth v. Chacko, 391 A.2d 999, 1000 (Pa. 1978). (Order at number 10).
28
C. Appellant contends that not requiring the Commonwealth to produce the actual
computer and images thereon and also allowing the copy of photos to be shown and
admitted without a proper chain of custody of the computer itself after seizure (Id at
106) nor even establishing an actual date thereon of when the photos may have been
downloaded and/or viewed. Sgt. John Kelly also references getting the computer from
Jeff Roney but that there was no date and time as to when it was logged into evidence.
(Id at 111)
Appellant never requested that the Commonwealth produce the actual computer that was
seized from the Appellant, so this issue is waived.
Appellant has already raised the chain of custody issue above and the court has addressed
this issue at 1E above.
D. Appellant contends that the court allowed prejudicial comments to be made by the
District Attorney in opening and closing statements. (NT 9/8/15 at 56-60); (NT 9/9/15 at
146). Appellant contends that the DA states his personal belief in regard to defendant
finding the photos not distasteful. Id at 153.
Initially, it should be noted that no objection was lodged during the opening or closing
arguments of the Commonwealth. The lack of a request for a contemporaneous curative instruction
constitutes a waiver of any claim of error. Commonwealth v. Robinson, 670 A.2d 616, 622 (Pa.
1995).
Assuming wguendo that there is no waiver, Appellant contends that the court allowed
prejudicial comments to be made by the District Attorney in opening and closing statements. (NT
9/8/15 at 56-60).6 As to Appellant's reference to prejudicial comments at: "NT 9/9/15 at 146", the
alleged prejudicial comments made by the District Attorney in closing arguments were references to
the titles of the sites that were visited sites on Appellant's computer. The DA commented that they
were "pretty raunchy" and "distasteful". (N.T. 9/10/15 p.146).
6 Initially, it should be noted that Appellant cited to: "(NT 9/8/15 at 56-60)". The notes of
testimony for 9/8/15 end on p.19, so the cite does not exist.
29
As this comment was fair argument, this claim is meritless. See Commonwealth v. Rios, 920
A.2d 790, 808 (Pa. 2007) (holding that a prosecutor may make all reasonable inferences supported
by the evidence).
Here, the prosecutor's remarks constituted fair comment on the evidence. The jury had heard
the visited sites as listed in C-2, which included names such as "24/7sexyteens.com" and
"i legalpitssey.com". hi closing, the prosecutor did not list the names but simply stated that they
1
were "pretty raunchy" and "distasteful". (N.T. 9/9/15 p.146). As these comments
were fair argument, this claim is meritless.
The DA states his personal belief in regard to defendant finding the photos not
distasteful. Id at 153
The Appellant's allegation that the DA stated his personal belief in his closing argument to
the jury stems from the following:
The last thing that Mr. Smith [defense counsel] said in his opening that I'll finish with
here is this. Mr. Smith told you in his opening that everybody in this court finds these
images distasteful. I don't agree. We know that one person in this courtroom found
these images quite appealing.
(N.T. 9/10/15 p.153).
The Appellant claims that the prosecutor improperly offered his personal opinion that the
Appellant found the photos appealing. However, Appellant failed to preserve this claim for appeal as
Ire did not object to the prosecutor's statement at trial and raises this argument for the first time on
appeal. See Pa.R.A,P. 302(a) (stating "issues not raised in trial court are waived and cannot be raised
for first time on appeal"). Accordingly, this argument is waived. Commonwealth v. Robinson, 670
A.2d 616, 622 (Pa. 1995); Commonwealth v. Sandusky, 77 A.3d 663, 670 (Pa.Super.2013) (noting
that "[elven where a defendant objects to specific conduct, the failure to request a remedy such as a
mistrial or curative instruction is sufficient to constitute waiver").
30
Assuming arguendo that there is no waiver, Appellant contends that the DA stated his
personal belief in his closing arguments to the jury. However, a district attorney must have
reasonable latitude in fairly presenting a case to the jury and he or she must be free to present his or
her arguments with 'logical force and vigor.' Commonwealth v. Smith, 490 Pa. 380, 387 (Pa. 1980)
(quoting Commonwealth v. Cronin, 464 Pa. 138 (1975)). In addition, the effect of this comment was
de minimus, particularly in light of the evidence against the Appellant. See Commonwealth v. Story,
476 Pa. 391, 383 A.2d 155, 165 (Pa. 1978).
With specific reference to a claim of prosecutorial misconduct in a closing statement, it is
well settled that "[i]n reviewing prosecutorial remarks to determine their prejudicial quality,
comments cannot be viewed in isolation but, rather, must be considered in the context in which they
were made." Commonwealth v. Sampson, 900 A.2d 887, 890 (Pa. Super. 2006). As the Superior
Court opined in Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa. Super. 2010), "[o]ur review of
prosecutorial remarks and an allegation of prosecutorial misconduct requires us to evaluate whether
a defendant received a fair trial, not a perfect trial." Id at 1019 citing Commonwealth v. Rios, 554 Pa.
419, 721 A.2d 1049, 1054 (1998).
It is settled law that it is improper for a prosecutor to express a personal belief as to the
credibility of the defendant or other witnesses. However, the prosecutor may comment on the
credibility of witnesses. Further, a prosecutor is allowed to respond to defense arguments with
logical force and vigor. If defense counsel has attacked the credibility of witnesses in closing, the
prosecutor may present argument addressing the witnesses' credibility. Commonwealth v. Chmiel,
889 A.2d 501, 544 (Pa. 2005). Thus, proper examination of the comments of the District Attorney in
closing requires review of the arguments advanced by the defense. As indicated, the defense in this
case commented 'that everybody in this court finds these images distasteful' so the Commonwealth
31
was simply responding to defense arguments with logical force and vigor. The challenged
comments
represented permissible vigorous response to the defense. See Chtniel, 889 A.2d at 544.
E. The Appellant contends that the court though previously entering an order to
preclude mention of Defendant's prior conviction for child pornography, allows same in
under 404(b) (Id at 118-120) and further instructs the jury at one point that it may not
be used as substantive evidence of guilt and then re -instructs at the close of trial that
they may so use it, confusing the jury in regard to same. (Id at 122, 165).
In its final argument, the Appellant admits that the court previously entered an order
to
preclude mention of his prior conviction for child pornography and [criminal use of communication
facility]. This order was issued after a pretrial hearing on the Commonwealth's "Motion to admit
evidence under Pa.R.E. 404(b)". However, the Appellant fails to note a provision in the order which
reads:
However, as to the Commonwealth's argument that the defendant's prior conviction is
admissible to rebut any false inferences raised by the defendant or his witnesses, the
court agrees. If the defendant "opens the door" at trial, the prior conviction may
be admitted into evidence to rebut any false inferences raised by the defendant
or his witnesses....
(Paragraph 9 of the "Order denying Commonwealth's Motion to admit evidence under Pa.R.E.
404(b)") (emphasis in the original).
The Appellant testified on cross-examination that he did not have the motive to conunit the
crimes charged (N.T. 9/10/15 p.114); the intent (NJ. 9/10/15 p. 115); it was a mistake (NJ. 9/10/15
p. 115); and it was not part of a plan (N.T. 9/10/15 p.115). As the court noted:
Mr. Smith, Mr. Galantino elicited directly from the Defendant all of the criteria.
Absence of mistake, intent, motive, lack of knowledge, all of them. He has elicited
every one of the 404(b) exceptions directly from the testimony, directly from the
mouth of the defendant. So your objection is overruled. The court is going to grant
the 404(b) motion. I will then permit the admission of the defendant's prior criminal
history by rebuttal testimony. (N.T. 9/10/15 p.119).
32
There was nothing in the court's ruling that did not comport with the pretrial order cautioning
the Appellant that the prior conviction may be admitted to rebut any false
inferences raised by the
Appellant. Appellant's argument is meritless.
Appellant contends that the court instructs the jury at one point that it may not be used
as substantive evidence of guilt and then re -instructs at the close of
trial that they may
so use it, confusing the jury in regard to same. (Id at 122, 165).
Appellant failed to preserve this claim for appeal as he did not object to the court's
instructions to the jury and raises this argument for the first time on appeal. See Pa.R.A.P. 302(a)
(stating "issues not raised in trial court are waived and cannot be raised for first time on
appeal").
When asked if there were any objections, additions, or deletions as to the court's handling of the
stipulation and the cautionary instruction to the jury, Mr. Smith replied: "No objection." (N.T.
9/10/15 p.123). Accordingly, this argument is waived. Commonwealth v. Robinson, 670 A.2d 616,
622 (Pa. 1995).
Assuming arguendo that there is no waiver, Appellant's final argument is that the court
confused the jury based upon instructions given. The Appellant references the court's instructions at
(N.T. 9/10/15 p.122), after Exhibit C-15 was handed up to the court, which related to a
stipulation
entered as to documents confirming the Appellant's prior conviction for Possession of
Child
Pornography and Criminal Use of Communication Facility. The court advised the jury:
...Now ladies and gentlemen, you have just heard evidence in the nature of the
stipulation to prove that the defendant was previously convicted of the offense stated
by Mr. Galantino, an offense for which he is not on trial today. This evidence is
before you for a limited purpose and that is for the purpose of rebutting the testimony
of the Defendant. The evidence must not be considered by you in any way other than
for the purpose I just stated. You must not regard this evidence as showing that the
defendant is a person of bad character or criminal tendencies from which you might
be inclined to infer guilt.
33
(N.T. 9/10/15 p.123). The instruction given by the court mirrors the Pennsylvania standard jury
instruction on the topic:
3.08 (Crim) EVIDENCE OF OTHER OFFENSES AS SUBSTANTIVE PROOF
OF GUILT
1. You have heard evidence tending to prove that the defendant was guilty of [an
offense] [improper conduct] for which [he] [she] is not on trial. I am speaking of the
testimony to the effect that [explain testimony].
2. This evidence is before you for a limited purpose, that is, for the purpose of
tending to [show [give specifics]] [contradict [give specifics]] [rebut [give specifics]]
[give specifics]. This evidence must not be considered by you in any way other than
for the purpose I just stated. You must not regard this evidence as showing that the
defendant is a person of bad character or criminal tendencies from which you might
be inclined to infer guilt.
The court's closing instruction to the jury was as follows:
Ladies and gentlemen, during the course of the trial you heard evidence tending to
prove that the defendant has been previously found guilty of an offense, the one that
was stated by the Commonwealth. He is not on trial for that offense. I'm speaking of
the stipulation made by Mr. Galantino--agreed to by Mr. Galantino and Mr. Smith
that the record would reflect a prior conviction for child pornography. Again he is not
on trial for that offense, ladies and gentlemen. This evidence is before you for a
limited purpose. That is for the purpose of tending to show motive, intent or absence
of mistake. This evidence must not be considered by you in any way other than for
the purpose I have just stated. You must not regard this evidence as showing that the
defendant is a person of bad character or criminal tendencies from which you might
be inclined to infer guilt.
(N.T. 9/10/15 p.165). These are not conflicting instructions. The two instructions minor the
language in the Pennsylvania standard jury instructions.
When evaluating jury instructions, the appellate courts must consider whether the
instructions as a whole were prejudicial. Commonwealth V. Hawkins, 567 Pa. 310, 787 A.2d 292,
301 (2001). A trial court is not required to use any particular jury instructions, or particular forms of
expression, so long as those instructions clearly and accurately characterize relevant law. Id.34
Commonwealth v. Carson, 913 A.2d 220, 255 (Pa. 2006). Here, the instructions as a whole were not
prejudicial to the Appellant. The important instruction that was conveyed to the jury on both
occasions was that the court emphasized and repeated twice "You must not regard this evidence as
showing that the defendant is a person of bad character or criminal tendencies from which you might
be inclined to infer guilt." Appellant's claim is meritless.
CONCLUSION:
For the foregoing reasons, the Trial Court's Judgment of Sentence should be affirmed on
appeal.
BY THE COURT:
JAMES F. NILON, JR., J.
35