Com. v. Reynolds, G. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GEORGE THEODORE REYNOLDS, :
:
Appellant : No. 1908 MDA 2013
Appeal from the Judgment of Sentence June 28, 2013,
Court of Common Pleas, Juniata County,
Criminal Division at No. CP-34-CR-0000118-2011
BEFORE: BOWES, DONOHUE and ALLEN, JJ.
MEMORANDUM BY DONOHUE, J.: FILED JUNE 10, 2015
George Theodore Reynolds (“Reynolds”) appeals from the judgment of
sentence entered following his convictions of twenty-five counts of sexual
abuse of children - child pornography (“possession of child pornography”),
18 Pa.C.S.A. §§ 6312(d)(1). Following our review, we affirm.
The relevant facts underlying this appeal may be summarized as
follows. Reynolds and his now-estranged wife, Doris, married in 2002.
Shortly thereafter, Doris obtained custody of two of her grandchildren, who
were three and four years old. Almost a decade later, in January 2011, an
investigation into Reynolds began when a child that Reynolds and Doris used
to babysit revealed to his mother that Reynolds had touched him
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inappropriately.1 The child’s mother contacted Juniata County Children and
Youth Services (“CYS”) and informed CYS caseworker Karen Imes of her
son’s allegations and an investigation ensured. Ms. Imes interviewed
Reynolds and Doris separately. Gretchen Swank of the Pennsylvania State
Police was present for both interviews. During her interview, Doris revealed
that that she caught Reynolds viewing pornography of teenaged boys on
multiple occasions on a computer in their home. Based on this and other
statements made by Doris, Trooper Swank secured a search warrant for
Reynolds’ home. As part of the search, the police confiscated three
computers from the residence. Analyses of the hard drives revealed thirty-
two images of suspected child pornography; specifically, images involving
males who appeared to be underage. The investigation also turned up
allegations of sexual assault from the granddaughter that lived with
Reynolds and Doris as well as a male foster child that lived with them for
approximately one year.
Reynolds was charged with three counts of aggravated indecent
assault; thirty-two counts of possession of child pornography; and nine
counts of indecent assault. Reynolds filed several pre-trial motions seeking,
inter alia, suppression of the images obtained from the computers,
severance of the charges, and dismissal of the charges for violation of
1
At the time this investigation began, Doris and the grandchildren had
moved out of the home she shared with Reynolds.
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Pa.R.Crim.P. 600. The trial court denied all motions and the case proceeded
to a two-day jury trial. The jury acquitted Reynolds on all aggravated
indecent assault and indecent assault charges, as well as seven counts of
possession of child pornography. He was convicted of the remaining twenty-
five counts of possession of child pornography. The trial court sentenced
him to one to four months of incarceration on each count, resulting in an
aggregate sentence of two years and one month to eight years and four
months of incarceration. Reynolds filed post-sentence motions, which the
trial court denied. This timely appeal followed.
Reynolds has raised the following issues for our review:
A. Did the trial court err in denying [Reynolds’] motion
to suppress the evidence seized pursuant to a search
warrant where the affidavit for the issuance of the
warrant failed to provide sufficient or accurate
information, contained irrelevant information that as
stale, contained misleading and/or inaccurate
statements, lacked requisite specificity and omitted
the complete statements of an estranged spouse?
B. Did the trial court err in denying [Reynolds’] motion
for the severance of the two distinct type [sic] of
cases sets forth in the criminal information as no
common scheme or any other exception under
Pa.R.E. 404 was established and the evidence of
each case constituted impermissible, highly
prejudicial evidence?
C. Did the trial court err in denying [Reynolds’] motion
to dismiss pursuant to Pa.R.Crim.P. 600?
D. Did the trial court err in failing to enter a judgment
of acquittal on the offense of possession or control of
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child pornography inasmuch as the evidence was not
sufficient to prove the elements of the crime?
E. Sentencing Issues:
1. Did the consecutive sentences imposed for
each of the twenty-five counts of possession
of child pornography in this case raise the
aggregate sentence to an unreasonably
excessive level in light of the conduct at
issue in this case and [Reynolds’]
circumstances?
2. Did the trial court commit an error of law by
determining that [Reynolds] is subject to
the registration requirement of SORNA,
42 Pa.C.S.A. § 9799, et. seq.?
Reynolds’ Brief at 8.2
Reynolds first challenges the trial court’s denial of his motion to
suppress the items recovered during the execution of the search warrant,
arguing that the warrant was invalid because it was not supported by
probable cause.
Under the federal and state constitutional
prohibitions of unreasonable searches and seizures,
both the United States Supreme Court and [the
Pennsylvania Supreme] Court have consistently held
that, subject to certain exceptions, a search is
constitutionally invalid unless it is conducted
pursuant to a warrant issued by a neutral and
detached magistrate and supported by probable
cause. Mincey v. Arizona, [] 98 S.Ct. 2408, []
(1978); Commonwealth v. Jones, [] 988 A.2d
649, 655 ([Pa.] 2010). Probable cause exists where,
based upon a totality of the circumstances set forth
2
We have reordered Reynolds’ issues for purposes of the disposition of this
appeal.
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in the affidavit of probable cause, including the
reliability and veracity of hearsay statements
included therein, “there is a fair probability that ...
evidence of a crime will be found in a particular
place.” Commonwealth v. Johnson, [] 42 A.3d
1017, 1031 ([Pa.] 2012) (internal quotation marks
omitted). … On appeal, [the appellate] [c]ourt
affirms the decision of the suppression court unless it
commits an error of law or makes a factual finding
without record support. [Commonwealth v.]
Briggs, [] 12 A.3d [291,] 320.
Commonwealth v. Lyons, 79 A.3d 1053, 1063-64 (Pa. 2013).
Reynolds argues that Trooper Swank mischaracterized Doris’
statement in the affidavit attached to the application for the search warrant
and therefore impermissibly fabricated probable cause to support the
issuance of a search warrant. Reynolds points out that in her police report,
Trooper Swank states that Doris observed Reynolds viewing pornography of
“men” that appeared “teenaged” and “close to underage,” whereas in the
affidavit of probable cause, Trooper Swank stated that Doris reported
observing Reynolds watching pornography of “young males[] … who
appeared to be in their teens.” Reynold’s Brief at 18-19. This is deficient,
Reynolds contends, because Trooper Swank “didn’t say the age and certainly
did not say underage or child pornography.” Id. at 21 (emphasis in the
original). Reynolds argues that Trooper Swank took an equivocal statement
and turned it into a more definitive declarative that Reynolds was viewing
pornographic images of minors. More succinctly, “[Reynolds] asserts that
had Trooper Swank used … Doris’ exact statement as set forth in Trooper
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Swank’s police report, there was no probable cause to believe there was
child pornography … and the warrant would not have been issued.” Id. at
22.
The trial court rejected this argument. It found that that Reynolds’
argument was “merely an argument of semantics. There is no difference
between the qualification of ‘appeared to be in their teens’ and ‘appearing
teenaged.’” Trial Court Opinion, 5/30/14, at 2. We can find no abuse of
discretion in the trial court’s determination. We agree that Trooper Swank’s
statement as recorded in her police report is substantively the same as her
statement in the affidavit of probable cause submitted with the warrant
application.
We also find no merit to Reynold’s claim that because Doris did not
affirmatively state that she saw child pornography, the warrant was
rendered deficient. See Reynolds’ Brief at 19 (“Trooper Swank failed to
advise the issuing judge that [] Doris never stated she saw child
pornography.”) (emphasis in the original). The factual allegations in Trooper
Swank’s affidavit of probable cause were supported by statements recorded
in her police report following her interview with Doris, and that statement
was sufficient to establish a fair probability that evidence of a crime,
specifically, possession of child pornography, would be found in Reynolds’
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home.3 This is all that was required for the warrant to issue. Lyons, 79
A.3d at 1064. There is no merit to this claim.
Reynolds next argues that the trial court erred in denying his motion
for severance of the “two distinct type [sic] of cases set forth in the criminal
information[.]” Reynolds’ Brief at 25.
“A motion for severance is addressed to the sound
discretion of the trial court, and ... its decision will
not be disturbed absent a manifest abuse of
discretion. The critical consideration is whether
the appellant was prejudiced by the trial
court’s decision not to sever. The appellant
bears the burden of establishing such
prejudice.”
Commonwealth v. Mollett, 5 A.3d 291, 305 (Pa. Super. 2010) (emphasis
added). Prejudice in this context is defined as “that which would occur if the
evidence tended to convict appellant only by showing his propensity to
commit crimes, or because the jury was incapable of separating the
evidence or could not avoid cumulating the evidence.” Commonwealth v.
Boyle, 733 A.2d 633, 637 (Pa. Super. 1999).
Rule of Criminal Procedure 583 provides that “[t]he court may order
separate trials of offenses or defendants, or provide other appropriate relief,
3
Reynolds includes brief argument alleging that the information used to
establish probable cause was stale and that there were omissions or
ambiguities that render the search warrant invalid. Reynolds’ Brief at 23-24.
Reynolds did not raise these bases for relief in any of his three pre-trial
motions, and so he cannot raise them on appeal. See Commonwealth v.
Santiago, 980 A.2d 659, 666 n.6 (Pa. Super. 2009) (“[A] new and different
theory of relief may not be successfully advanced for the first time on
appeal.”); Pa.R.A.P. 302(a).
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if it appears that any party may be prejudiced by offenses or defendants
being tried together.” Pa.R.Crim.P. 583. When considering a motion to
sever,
[t]he court must determine whether the evidence of
each of the offenses would be admissible in a
separate trial for the other; whether such evidence is
capable of separation by the jury so as to avoid
danger of confusion; and, if the answers to these
inquiries are in the affirmative, whether the
defendant will be unduly prejudiced by the
consolidation of offenses.
Commonwealth v. Kunkle, 79 A.3d 1173, 1190 (Pa. Super. 2013)
(quoting Commonwealth v. Lark, 543 A.2d 491, 497 (Pa. 1988)).
With regard to the first prong of this test, the trial court found that the
evidence would be admissible in separate trials under the “common plan,
scheme or design” exception to the general prohibition against evidence of
other bad acts. Trial Court Opinion, 6/10/14, at 3. Generally, evidence of
bad acts is inadmissible to prove that a defendant acted in conformity with
those acts or to demonstrate a propensity to commit crimes.
Commonwealth v. Brown, 52 A.3d 320, 325 (Pa. Super. 2012).
“However, evidence of bad acts is admissible pursuant to our rules of
evidence to prove motive, opportunity, intent, preparation, plan, knowledge,
identity, and absence of mistake or accident.” Id. (citing Pa.R.E.
404(b)(2))4.
4
This rule provides, in relevant part, as follows:
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In this case, the trial court found that the “common scheme or design”
exception applied because the child pornography “focused on bath and
shower scenes” and the sexual assaults were alleged to have occurred while
Reynolds was bathing the alleged victims. Trial Court Opinion, 6/10/14, at
3. We do not agree. “The degree of similarity is an important factor in
determining the admissibility of other crimes or bad acts under [the common
scheme or plan] exception.” Commonwealth v. Einhorn, 911 A.2d 960,
967 (Pa. Super. 2006).
We addressed the applicability of this exception in Commonwealth v.
Aikens, 990 A.2d 1181 (Pa. Super. 2010), in which the defendant was
appealing his convictions of corruption of a minor, endangering the welfare
of a child, and indecent assault. The victim was the defendant’s fourteen-
year-old daughter. At trial, the defendant’s older daughter testified that he
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or
other act is not admissible to prove a person's
character in order to show that on a particular
occasion the person acted in accordance with the
character.
(2) Permitted Uses. This evidence may be admissible
for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident. In a
criminal case this evidence is admissible only if the
probative value of the evidence outweighs its
potential for unfair prejudice.
Pa.R.E. 404(b)(1)-(2).
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raped her when she was fifteen years old. The defendant argued that the
trial court erred in finding that the older daughter’s testimony was
admissible as evidence of a common scheme or plan. We reasoned as
follows:
In the case at bar, we believe that the fact
pattern involved in the two incidents was markedly
similar. In both cases, the victims were of like ages:
T.S. was fourteen years old, and V.B. was fifteen
years old. Both victims were [the defendant’s]
biological daughters. [The defendant] initiated the
contact during an overnight visit in his apartment.
He began the sexual abuse by showing the girls
pornographic movies. The assaults occurred in bed at
night. While [the defendant] raped V.B. and
indecently assaulted T.S., T.S. stopped [the
defendant] from disrobing her and committing the
more serious sexual assault. In addition, [the
defendant] mimicked the grinding movements of
sexual intercourse on T.S. in order to sexually gratify
himself. These matching characteristics elevate the
incidents into a unique pattern that distinguishes
them from a typical or routine child-abuse factual
pattern. Hence, we reject [the defendant’s] position
that we are pigeonholing sexual abuse cases to such
an extent that any prior instance of child abuse
would be admissible in a subsequent child abuse
prosecution. See also Commonwealth v. Hughes,
[] 555 A.2d 1264 ([Pa.] 1989) (evidence about prior
rape correctly allowed at rape-murder trial since
crimes were committed in similar geographic
location, at similar time, characteristics of victim
matched, and defendant used same method of
attack). As was the case in Hughes, the similarities
at issue herein were “not confined to insignificant
details that would likely be common elements
regardless of who committed the crimes.” Id. at
1283.
Id. at 1185-86.
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In contrast, the crimes at issue in this case do not bear many
similarities. They share only the common denominator of a bathing
scenario, and that was present in only some of the pornography. The
pornography exclusively depicted teenaged boys, while the assaults were
allegedly carried out on an adolescent, prepubescent male and female, and
in one instance, a very young male child. The record does not provide a
high degree of similarity between these crimes; accordingly, we conclude
that the trial court erred in its ruling.
Nonetheless, this error does not entitle Reynolds to relief. As set forth
above, the “critical consideration is whether the appellant was prejudiced by
the trial court’s decision not to sever[,]” Mollett, 5 A.3d at 305, and
prejudice in this context is found “if the evidence tended to convict appellant
only by showing his propensity to commit crimes, or because the jury was
incapable of separating the evidence or could not avoid cumulating the
evidence.” Commonwealth v. Boyle, 733 A.2d 633, 637 (Pa. Super.
1999). Reynolds cannot meet this standard. As the jury acquitted him of all
charges related to alleged improper touching of the three minors, there is no
basis upon which to conclude that the evidence related to these charges
caused him prejudice. That is to say, given this outcome, it is evident that
the jury was capable of separating the evidence, the jury did not cumulate
the evidence, and it did not convict Reynolds of possession of child
pornography based on a belief that he has a propensity to commit crimes, in
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that it rejected the claim that he in fact committed the other crimes.
Because he cannot establish prejudice in his context, his claim cannot
succeed.
We now consider Reynolds’ claim that the trial court erred when it
denied his motion to dismiss based on Pa.R.Crim.P. 600 (“Rule 600”). “Our
standard of review relating to the application of Rule 600 is whether the trial
court abused its discretion. Our scope of review is limited to the evidence on
the record of the Rule 600 evidentiary hearing and the findings of the trial
court. We must view the facts in the light most favorable to the prevailing
party.” Commonwealth v. Baird, 919 A.2d 258, 260 (Pa. Super. 2007).
To determine whether dismissal is required under
Rule 600, a court must first calculate the mechanical
run date, which is 365 days after the complaint was
filed. Rule 600(C) addresses situations where time
can be excluded from the computation of the
deadline. Case law also provides that a court must
account for any “excludable time” and “excusable
delay.” Excludable time is delay that is attributable
to the defendant or his counsel. Excusable delay is
delay that occurs as a result of circumstances
beyond the Commonwealth’s control and
despite its due diligence. ... The only occasion
requiring dismissal is when the Commonwealth
fails to commence trial within 365 days of the
filing of the written complaint, taking into
account all excludable time and excusable
delay.
Commonwealth v. Colon, 87 A.3d 352, 358 (Pa. Super. 2014) (internal
citations and quotations omitted) (emphasis added).
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Addressing Reynolds’ motion to dismiss, the trial court found as
follows:
With regards the Rule 600 Motion, [Reynolds]
specifically argues, that the unavailability of Trooper
Swank for several months due to maternity leave
prevented [Reynolds] from his right to a speedy trial.
Pursuant to Pennsylvania Rules of Criminal
Procedure, a trial in which a written complaint is filed
against the defendant must commence within 365
days from the date on which the complaint is filed.
Pa.R.Crim.P. 600. However, the rule also states that
any periods of delay throughout the proceedings are
attributable to the Commonwealth only when the
delay is caused by the Commonwealth and the
Commonwealth has failed to exercise due diligence
in preventing the delay.
The Court discussed these time frames at length
during the Post-Sentencing Hearing. Tr. Omnibus
Pre-Trial Hearing 38:18-43:11 (February 8, 2013).
Charges were initially filed on May 19, 2011.
Seventy-eight (78) days passed until [Reynolds] filed
his first Omnibus Motion on August 5, 2011. A ruling
on this [m]otion was issued October 5, 2011,
however other [m]otions were filed on October 4,
2011. Thus, this additional delay is attributable to
[Reynolds] until November 30, 2011, when the
Commonwealth asked for an extension of time in
answering the motion. Forty-two [] days passed
before the motion was finally heard on January 12,
2012 and later decided on January 23, 2012. During
this time, the prosecuting officer began her restricted
duty on January 16, 2012. This restricted duty
continued until May 17, 2012, at which time the
Trooper went on maternity leave. The Trooper
remained on leave until July 30, 2012, thus tolling a
period of 188 days on behalf of the Commonwealth.
Fifty [] additional days passed before [Reynolds]
filed further [o]mnibus motions on September 18,
2012. All other time that passed between September
2012 and the date of trial is attributable to
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[Reynolds] as he had outstanding motions awaiting
decision. Thus, a total of 358 days attributable to
the Commonwealth passed before trial commenced.
As such, the Commonwealth brought [Reynolds] to
trial within the proper time frame.
[Reynolds] … argues that because [Trooper Swank]
was unavailable for such a long time period that the
Commonwealth failed to exercise due diligence. The
Trooper was on restricted duty from January 16,
2012 to May 17, 2012 during which time she was not
allowed to drive. Id. at 42:7-12. She was then on
maternity leave from May 17, 2012 to July 30, 2012.
Id. Although this delay was caused [by] a witness
for the Commonwealth, there is no failure to exercise
due diligence. Pregnancies and the health risks
that’s [sic] sometimes accompany them are a
common fact of life and it is not the fault of the
Commonwealth that this Trooper’s pregnancy
happened to fall during the time frame of this
prosecution. This delay could have happened during
any of the Trooper’s cases and to prevent such
delays, the Trooper would be required to sacrifice
her personal life for her job and the Court. As such,
the Commonwealth did not fail to exercise due
diligence and the Court did not err in denying the
Motion.
Trial Court Opinion, 5/30/14, at 4-5.
On appeal, as in the trial court, Reynolds takes issue only with the trial
court’s determination not to charge the time that Trooper Swank was on
restricted duty and maternity leave against the Commonwealth. See
Reynolds’ Brief at 49. We find no error in the trial court’s determination with
regard to that aspect of the delay. The complications that arose due to
Trooper Swank’s pregnancy, including the requirement that she be placed on
restricted duty (including the prohibition that she not drive) and maternity
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leave, where beyond the Commonwealth’s control, and therefore properly
categorized as excusable delay. Colon, 87 A.3d at 358.
Reynolds cites no authority nor develops any substantive argument in
support of his position. See Reynolds’ Brief at 49-50. He states only that
“the delay [due to Trooper Swank’s pregnancy] should not be attributable to
[Reynolds] who had otherwise spent significant time in pre-trial detention
and was otherwise prepared to go to trial.” Id. at 49. This summary
allegation does not convince us that the trial court abused its discretion.
Furthermore, his statement misses the point: the trial court did not assess
this time against Reynolds. It clearly found that it was a delay caused by
the Commonwealth that was explicitly excused because the cause of the
delay was beyond the Commonwealth’s control. This issue is without merit.
We now turn to Reynolds’ claim that the evidence was insufficient to
support his convictions. “Whether sufficient evidence exists to support the
verdict is a question of law; our standard of review is de novo and our scope
of review is plenary.” Commonwealth v. Tejada, 107 A.3d 788, 792 (Pa.
Super. 2015) (citation omitted). “We review the evidence in the light most
favorable to the verdict winner to determine whether there is sufficient
evidence to allow the jury to find every element of a crime beyond a
reasonable doubt.” Id.The crime at issue is defined as follows: “Any person who intentionally
views or knowingly possesses or controls any book, magazine, pamphlet,
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slide, photograph, film, videotape, computer depiction or other material
depicting a child under the age of [eighteen] years engaging in a prohibited
sexual act or in the simulation of such act commits an offense.”
18 Pa.C.S.A. § 6312(d). Relevant to this case, “accessing and viewing child
pornography over the internet constitutes ‘control’ of such pornography
under 18 Pa.C.S.[A.] § 6312(d).” Commonwealth v. Diodoro, 970 A.2d
1100, 1108 (Pa. 2009).
Reynolds’ argument is multifaceted, and we will address each aspect
thereof. He first argues that the evidence is insufficient to support his
conviction because “[he] denied that he intentionally or purposefully viewed
child pornography.” Reynolds’ Brief at 34. In a similar manner, Reynolds
argues that there was no evidence that he “actively sought out or
‘downloaded’ child pornography” in light of his testimony that the images
“were unsolicited or inadvertently viewed” while he was trying to access
pornography involving adult males. Id. at 36. These arguments focus
exclusively on Reynolds’ testimony and ignore Doris’ testimony that on
multiple occasions she observed Reynolds viewing pornography involving
teenaged males on his computers. N.T., 3/25/13, at 49-50, 86-87. It also
ignores the testimony of State Trooper Kevin Garhart, an expert in computer
forensics, who stated that the pornographic images he recovered from
Reynolds’ computers had purposely been saved on the computer before they
were deleted. Id. at 147. This evidence, when viewed in the light most
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favorable to the Commonwealth, is sufficient to establish that he knowingly
possessed the prohibited images.
Reynolds also argues that because the Commonwealth could not
establish the ages of the males in the pictures by direct evidence, such as
birth certificates, it should have been required to establish their ages
through expert testimony. Reynolds’ Brief at 35. He argues that simply
showing the images to the jury was insufficient to establish the ages of the
persons in the images. Id. at 36. Reynolds is wrong.
For a conviction of this offense, “[p]roof of age, like proof of any other
material fact, can be accomplished by the use of either direct or
circumstantial evidence, or both” and it need not be established by expert
testimony. Commonwealth v. Robertson-Dewar, 829 A.2d 1207, 1212
(Pa. Super. 2003). In Robertson-Dewar, this Court explicitly rejected the
argument that the age of minors in pornographic images must be
established by testimony from a pediatrician or other medical expert based
upon “body development, maturity, physical appearance, etc.” Id. We
reasoned,
Given the anonymity of the internet, the identity of
children depicted and their whereabouts are
frequently unknown. Thus, conventional means of
proving age such as birth certificates or testimony of
a relative are usually unavailable. To require law
enforcement officials to track down and identify the
children depicted in order to successfully prosecute a
child pornography case would rip the teeth out of the
child pornography statute and destroy its efficacy as
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a preventive measure in the sexual exploitation of
children. Therefore, the legislature has vested the
trier of fact with the function of determining the age
of the child depicted and further allows for this
element to be sufficiently established through
competent expert testimony in close cases. This
Commonwealth has long maintained that expert
testimony is not required in obscenity prosecutions,
and the determination is to be made on a case-by-
case basis. See Commonwealth v. Rodgers, []
327 A.2d 118, 121 ([Pa.] 1974) (stating “[o]ur
decision today is cognizant of the continuing duty of
this Court ... to make an ad hoc, case-by-case
determination of whether trial exhibits are legally
obscene.”). Rather, we have consistently held since
1974 that “printed publications and photographs
themselves are enough evidence for a jury, in
applying our statewide standard, to determine
whether the average person would find the materials
appealing to prurient interests.” Long v. 130
Market St. Gift & Novelty, [] 440 A.2d 517, 522
([Pa. Super.] 1982) (citing Rodgers, supra). See
also, Commonwealth v. Croll, [] 480 A.2d 266([Pa. Super.] 1984) (holding Commonwealth need
not produce expert testimony of statewide
community standards). As is the case with
determining obscenity under Rodgers, we see no
reason why the trier of fact[,] based on everyday
observations and common experiences[,] cannot
assess the age of the children depicted with the
requisite degree of certainty to satisfy the standard
of proof beyond a reasonable doubt.
Id. at 1213.
In the present case, the jury viewed the images and assessed the ages
of the people therein. Pursuant to Robertson-Dewar, this was an entirely
adequate and appropriate method for the Commonwealth to establish the
age of the males in the images found on Reynolds’ computers.
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Reynolds additionally argues that the evidence was insufficient to
establish that he “was involved” with the images because they were found in
unallocated space on the computers’ hard drives and there was no indication
of when the images were viewed, who viewed them, or how they were
deleted. Reynolds’ Brief at 36. This argument again ignores the testimony
from Doris, which established that she caught Reynolds viewing
pornographic material on the computers from which the images were
recovered, and that after the CYS investigation began, he told her he deleted
the images. N.T., 3/25/13, at 49-50, 58, 86-87, 168-70. Reynolds’
argument fails.
We have reached Reynolds’ final two issues, which challenge the
sentence the trial court imposed. He first argues that his sentence is
excessive. This claim challenges discretionary aspects of his sentence.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa. Super. 2011) (citation omitted).
An appellant challenging the discretionary aspects of
his sentence must invoke this Court’s jurisdiction by
satisfying a four-part test: (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.
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§ 9781(b). Commonwealth v. Evans, 901 A.2d
528, 533 (Pa. Super. 2006).
Id. “A substantial question exists where the statement sets forth a plausible
argument that the sentence violates a particular provision of the Sentencing
Code or is contrary to the fundamental norms underlying the sentencing
scheme.” Commonwealth v. McNabb, 819 A.2d 54, 56 (Pa. Super. 2003).
As noted above, Reynolds timely filed his appeal. He raised this claim
in his post-sentence motion, see Post-Sentencing Motion, 7/8/13, at 8, and
thereby preserved it for appeal. He has included a statement pursuant to
Pa.R.A.P. 2119(f) in his appellate brief. In this statement, Reynolds
challenges his sentence as excessive in light of the fact that the trial court
ordered each sentence to run consecutively and “the aggregate sentence
resulted in a sentence in excess of the Sentencing Guidelines.” Reynolds’
Brief at 17. We conclude that this presents a substantial question so as to
invoke our review. See Commonwealth v. Mastromarino, 2 A.3d at 587
n.5 (Pa. Super. 2010).5
Our standard of review for sentencing claims is as follows:
5
Reynolds also challenges his sentence is excessive because the trial court
failed to consider his “character, absence of a sexually violent predator
designation, [] age, health, non-likelihood of re-offending and all other
mitigating factors.” Reynolds’ Brief at 17. This claim does not present a
substantial question so as to invoke our review. Commonwealth v.
Bullock, 868 A.2d 516, 529 (Pa. Super. 2005), aff’d, 913 A.2d 207 (Pa.
2006) (“[T]his Court has held on numerous occasions that a claim of
inadequate consideration of mitigating factors does not raise a substantial
question for our review.”). Accordingly, we will not consider this aspect of
his excessiveness challenge.
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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. An abuse of discretion is more than just
an error in judgment and, on appeal, the trial court
will not be found to have abused its discretion unless
the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill-will. More specifically, 42
Pa.C.S.A. § 9721(b) offers the following guidance to
the trial court’s sentencing determination: ‘[T]he
sentence imposed should call for confinement that is
consistent with the protection of the public, the
gravity of the offense as it relates to the impact on
the life of the victim and on the community, and the
rehabilitative needs of the defendant.’ 42 Pa.C.S.A.
§ 9721(b). Thus, under 42 Pa.C.S.A. § 9721(b), a
sentencing court must formulate a sentence
individualized to that particular case and that
particular defendant.
Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013) (internal
citations omitted).
Reynolds argues that the imposition of consecutive sentences is
excessive in his case because he was only a viewer of child pornography,
rather than a creator or purveyor of child pornography. Reynolds’ Brief at
43. To the extent that Reynolds is arguing that the trial court was under
some misconception as to the nature of the offenses he committed, he is
mistaken. The trial court considered the particular nature of Reynolds’
offenses when it formulated the sentence. It stated, “often times in cases
such as this where you [sic] it’s something viewed off the internet, you don’t
have a known victim. I think … it is a different scenario if you are luring a
child into your home and taking pictures or something like that. That’s not
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being alleged here whatsoever.” N.T. 6/28/13, at 33-34. The trial court was
well aware of the conduct underlying Reynolds’ convictions.
Furthermore, the record reveals that the trial court specifically
considered the effect that running the sentences consecutively would have
on Reynolds’ aggregate sentence, and concluded that it would be
appropriate in this case because it would “take[] into account each and
every count that [he] w[as] convicted of” and also adequately take into
consideration the need for protection of the public and Reynolds’
rehabilitative needs. Id. at 31, 35. The trial court also acknowledged that
in some cases, the imposition of consecutive sentences would result in a
disproportionally lengthy sentence, but concluded that this is not such a
case. See id. at 31-32, 34-35. It was within the trial court’s discretion to
fashion a sentence that addressed each conviction individually. Reynolds’
dissatisfaction with that decision does not give this Court the authority to
disturb the trial court’s determination.
The record further reveals that the trial court explicitly took Reynolds’
lack of criminal history into account, as well as the need for “the protection
of the public, the gravity of the offense as it relates to the impact on the life
of the victim and on the community, and the rehabilitative needs” of
Reynolds, as it was required to. See id. at 31-35. In short, the trial court
considered all factors that it was required to consider; it considered
Reynolds’ lack of criminal history and the nature of the offenses; and it
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weighed the effect consecutive sentences would have on Reynolds’
aggregate sentence, and found the sentence to be appropriate. As we can
see no abuse of discretion, we cannot disturb the trial court’s determination.
Finally, Reynolds asks whether the trial court erred when imposing
lifetime registration requirements pursuant to section 9799.15(a) of the
Sexual Offender Registration and Notification Act (“SORNA”).
We begin by noting that SORNA contains a tier system, in which the
crimes that are subject to its registration requirements are divided into three
tiers. 42 Pa.C.S.A. §§ 9799.14 Persons convicted of a Tier I, II or III
offense are subject to SORNA’s registration requirements for fifteen years,
twenty-five years, and life, respectively. 42 Pa.C.S.A. §§ 9799.15. SORNA
further provides that when a person is convicted of more than one Tier I or
Tier II offenses, the offenses are classified as Tier III offenses. 42 Pa.C.S.A.
§ 9799.14(d)(16).
The offenses of which Reynolds was convicted, possession of child
pornography, is a Tier I offense. Reynolds argues that because he was
convicted of all twenty-five counts of this crime at the same time, the trial
court erred in applying the lifetime registration requirements to him.
Reynolds’ Brief at 44.
In Commonwealth v. Merolla, 909 A.2d 337 (Pa. Super. 2006), this
Court addressed the same challenge under a predecessor to SORNA,
Megan’s Law II. In that case, the defendant pled nolo contendere to three
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Tier I offenses. The trial court sentenced him to a term of incarceration and
also required that he be subject to the Megan’s Law registration
requirements for ten years following his release from prison. Merolla, 909
A.2d at 340-41. Both the Commonwealth and the defendant appealed from
the judgment of sentence. Of relevance, the Commonwealth argued that
the trial court should have subjected Merolla to lifetime registration
requirements “because he pleaded nolo contendere to two separate counts
of indecent assault, albeit at the same plea hearing[,]” and therefore that he
had two convictions of that offense for purposes of the lifetime registration
requirement. Id. at 345. We agreed, reasoning as follows:
The salient portion of the statute provides:
“[a]n individual with two or more convictions of any
of the offenses set forth in subsection (a)” shall be
subject to lifetime registration. 42 Pa.C.S.A. §
9795.1(b)(1). However, the Three Strikes Statute
applies “[w]here the person had at the time of the
commission of the current offense previously been
convicted of two or more such crimes ...” 42
Pa.C.S.A. § 9714(a)(2) (emphasis added). Thus, the
language of Megan’s Law II is distinguishable from
the language of the Three Strikes Statute[,] as
Megan’s Law II does not require a previous
conviction. Moreover, the legislative intent behind
Megan’s Law II is distinct from that of the Three
Strikes Statute. Whereas Megan’s Law II is based on
concern for public safety, the Three Strikes Statute,
although it also implicates public safety, is directed
to heightening punishment for criminals who have
failed to benefit from the effects of penal disciple
[sic][.] [S]ee [Commonwealth v.] Shiffler, [] [879
A.2d 185[,] 196 [(Pa. 2005)][.]
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The sequence of events described in Shiffler—
first offense, first conviction, first sentencing, second
offense, second conviction, second sentencing—does
not apply to Megan’s Law II based on a literal
reading of the statute. Compare Shiffler, supra at
192, with 42 Pa.C.S.A. §§ 9791–9799. Thus, it is
irrelevant that Merolla had not been sentenced for
his first offense before the commission of his second
crime. See [Commonwealth v.] Williams[,] [832
A.2d 962,] 972 [(Pa. 2003)]. Moreover, the intent of
the legislature is better served by subjecting Merolla
to heightened registration requirements because the
public would continue to be notified of his
whereabouts after the initial ten-year registration
period. As already stated, this heightened
registration is not an additional punishment. See id.
at 973.
Id. at 346-47.
SORNA contains operative language identical to the portion of Megan’s
Law II discussed in Merolla, as it provides that “[t]wo or more convictions
of offenses listed as Tier I or Tier II sexual offenses” constitute Tier III
offenses, 42 Pa.C.S.A. § 9799.14(d)(16). There is no requirement of
previous convictions. Accordingly, pursuant to Merolla, we conclude that
the trial court did not err in imposing lifetime registration requirements.
Reynolds ignores our decision in Merolla and focuses his argument on
Commonwealth v. Jarowecki, 985 A.2d 955 (Pa. 2009). This reliance is
misplaced. Jarowecki did not involve a statute governing registration
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requirements for sexual offenders; rather, it involved the proper grading of
serial convictions under the Crimes Code. His argument merits no relief.6
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/10/2015
6
We note that the precise issue raised by Reynolds is pending before the
Pennsylvania Supreme Court. See Commonwealth v. Lutz-Morrison, __
A.3d __, 2015 WL 1579010 (Pa. April 8, 2015). Until the Supreme Court
issues its decision, Merolla remains binding precedent. See State Farm
Fire & Cas. Co. v. Craley, 844 A.2d 573, 575 (Pa. Super. 2004) (stating
this Court is bound by decisions of other panels of this Court until an en
banc panel of this Court or the Supreme Court decides otherwise).
We further note that Reynolds included brief argument challenging the
application of SORNA as a violation of the ex post facto clause of the United
States Constitution. See Reynolds’ Brief at 46. Reynolds did not raise this
claim in the trial court, and so it has been waived for purposes of appeal.
See Commonwealth v. Haughwout, 837 A.2d 480, 486 (Pa. Super. 2003)
(holding that issues, even of constitutional dimension, are waived if not
raised in the court below); Pa.R.A.P. 302(a).
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