Com. v. Delorge, K. ( 2019 )

J-S79022-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KRISTIN DELORGE :
:
Appellant : No. 937 MDA 2018
Appeal from the Judgment of Sentence February 20, 2018
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0000915-2016
BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 05, 2019
Appellant, Kristin Delorge, appeals from the judgment of sentence
entered on February 20, 2018 in the Criminal Division of the Court of Common
Pleas of Schuylkill County. We affirm.
The opinion of the trial court filed on May 11, 2018 sets forth the factual
and procedural history of this case. See Trial Court Opinion, 5/11/18, at 1-12.
We adopt that recitation of the facts and shall not repeat those facts herein.
At the conclusion of trial on November 1, 2017, a jury found Appellant guilty
of ten counts each of sexual abuse of children - disseminating depictions of
prohibited acts (18 Pa.C.S.A. § 6312(c)) and sexual abuse of
children – possessing material depicting prohibited acts (18 Pa.C.S.A.
§ 6312(d)). The jury also found Appellant guilty of one count of criminal use
of a communication facility (18 Pa.C.S.A. § 7312(a)). On February 20, 2018,
J-S79022-18
the trial court sentenced Appellant to an aggregate term of 18 to 36 months’
incarceration followed by ten years’ probation.1
After the trial court denied Appellant’s post-sentence motions on May
11, 2018, Appellant filed a timely notice of appeal on June 8, 2018. The court
then directed Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied on July 3,
2018 and the trial court issued its Rule 1925(a) opinion on July 6, 2018.
On appeal, Appellant challenges the sufficiency of the evidence offered
in support of his child pornography convictions, as well as his conviction for
the criminal use of a communication facility. In particular, Appellant claims
that a single download of child pornography is insufficient to demonstrate a
knowing or intentional violation of 18 Pa.C.S.A. § 6312(c). Similarly,
Appellant maintains that the evidence is insufficient to show that he
intentionally viewed or knowingly possessed child pornography in violation of
18 Pa.C.S.A. § 6312(d). Appellant concludes that because the evidence is
insufficient to prove that he violated §§ 6312(c) and 6312(d), the evidence is
equally insufficient to show a criminal use of a communication facility in
violation of 18 Pa.C.S.A. § 7312(a).
We have carefully reviewed the certified record, the submissions of the
parties, and the thorough opinion issued by the trial court in denying
____________________________________________
1 At trial, Appellant was also convicted of several drug-related offenses for
which the trial court imposed concurrent punishments. Appellant’s drug
offenses are not challenged on appeal.
-2-
J-S79022-18
Appellant’s post-sentence motions on May 11, 2018. Based upon our review,
we are satisfied that the evidence adduced at trial was sufficient to establish
each element of Appellant’s offenses beyond a reasonable doubt. Because the
trial court’s opinion adequately and accurately addresses the claims Appellant
presents on appeal, we adopt the trial court’s May 11, 2018 opinion as our
own. The parties are hereafter directed to include a copy of the trial court’s
May 11, 2018 opinion with all future filings pertaining to our disposition of this
appeal.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/05/2019
-3-
Circulated 01/25/2019 10:36 AM
COURT OF COMMON PLEAS 0.F SCHUYLKILL C.OUNTY-·CRIJ'illJNAL DIVISION
.COMMONWEAL TH OF PENNSYLVANIA No ..915.-16
vs.
KRiS.TIN DfLORGE, .
Defendant
Pfstrict Attorney's Qffice - for the Qommonweafth
· Frank R. Cori, Esquire -fer Defendant
DECISION
RUSSELL. J.
On February 18; 2018, Defendant Kristin Delorge filed a motion for post-trial
relief contending that the evidence elicited at his October 31 - November 1, 2017 jury
trial wa.s insufficient to supportguilty verdicts against him on ten counts each of sexual
abuseof children by disserninatinq depictions of prohibited sexual acts (18 Pa;C.S.
6312(c) }. and by possessing rnaterialdepictmq such acts (18 Pa.C.S, 6312(d) ), and on
one count of cnminal use of comrnunioationfacility (18 Pa.C.S. 7.312(a) ). Defendant
had also be.en found guilty of one count of possession With intent to. deliver a controlled
substance - marijuana (35.. P.S.. 780�113(a)(30} ). two counts of possession of a
controlled substance � rnariiuana and methamphetamine (,35 P.S.. 780-113(a}(16)) and
one count ofpossession pf drug paraphernalia .(3.5 P .s. 7BQ--113(a.)(32) ). Defendant
does not contest the sufficiency of the evidence oh the controlled
.substance/paraphernalta verdicts.
Defendant was sentenced dil February 20, 2018 to serve 3 to 12 months'
inc:.arceratJon on Count 1 - possession With intent to deliver: 18 to 36 months'
incarceration followed by 5 yeats' probation on Count 2 - dissemination of child
1
Exhibit B - Page 1
pornography; and, concurrent terms ofincarceration of 18 to 36 rnonths or of 12 to 24
months on the balance ofthe dissemination offenses (CO.LJ.lits 3 -1 j_).1 Sentences were
not.irnposed on the possession of child pornography offenses (Counts JR..::.2JJ which
were found to merge for sentencing purposes. Defendant was sentenced to serve 5
years' prebation. en Count. 2.2 - criminal use of communication facility- to run
consecutive to the sentence on Count.2.
Finally, Defendant was sentenced to serve terms of incarceration of 1 to 12
months on both Gounts.24 and 25 - offenses of possession of metharnphetamirie and
drugparaphernalta. respectively. The second count of possession ofa controlled
.substance (rnarquana) (Count 2�) was found to merge for sentencing purposes. With
the exception of the censecutivesentence of probation on Count 22. all sentences
imposed were to run concurrently with that imposed on. Count 1 =possession with intent
to.celiver a controlled substance (marijuana).
Defendantwas directed to file a brief in support of his motion setting forth the
basis for his claim that the evidence had been insufficient to prove the Commonwealth's
case on or before March 12,.201 a. In his March 141 2018 brief, Defendant arques that
the evidencewas insufficient to. prove thathe had disseminated any depiction or that he
had knowingly possessed the depictions. Further. Defendant raises the additional clann
that the Commonwealth's evidence was against the weig·ht of the evidence.. Ori March
15. 2018 �· the C cmmonweatth asked for addition al time to file a responsive brief
---- ··- ..-.,. ..,.
1
· All child por-r.qgrapl,y counts .ha.d been graded accordtnq to whether the depictions at. issue. exnlb\!ed
inoecent.contact.witha child as
defined 10 18 Pa.C.S, 3.101. Per 18 Pa.C'.S 3t01, indecent.centactis
··[a.Jny touching of th.e sexual orother .intimate parts of the person for the purpose of 9rOU$ihg or gratifying
sexual desire, in any person." in accordance vJith'l8 Pa.C.S. 63T2(d;1)(3); offenses involving depictions
otindecent contact shall be classified one grace higher than those without such con tac: depicted: The
longer terms .of imprisonment were. imposed on the. higher graded offenses.
2
Exhibit B-Page2
__________ __;._ ···--·····------·---- -· ---- �-----,..._ -··--- ----·----
-----�- ,, _ _,
................. -.......-··-····----·-·-·----·--.--·----·--··-···-·-·--·-·--·------------
because the triai prosecutor was no longer with the District Attorney's Office and the
current prosecutor needed a transcript of the trial testimony, which had then been
ordered but not prepared, to .address Defendant's arguments. The Court granted the
motion. The Commonwealth subsequently flied its responsive brief.
The Crimes Code defines the offenses and elements at issue asIojows:
Sexual abuse of childre.ri
{c) Dissemination of photographs, videotapes, computer
depictions and filrns.s-Any person vi/ho knowingly sells .
. qistfrbut�s. delivers .. dlsserninates, transfers, displays or
exhibits to others, or who possesses for the purpose .of
sale, distribution, delivery, dissemination, transfer. display
exhibitiontc others. any book. magazine, pamphlet .. .stice.
photograph; filr.n, videotape, computer depiction or other
material depicting a chiid under the age of 18 years
engaging in a prohibited: sexual act or in the simulation of
such act commits an offense.
{d) Child pernoqraphy=-Any person who intentionally views
cir knowingly possesses or controls any book, magazine,
pamphlet. slide, photograph, film. vrdeot�pe. computer
.ceprofton or other material depicting. a child under the age
of 18 years engaging in a prohibited sexual act or in the
simutauon of such actcommits an offense.
18 Pa.C.S. 6312{c}.(d).
Criminal Use or Communication Faci!l!Y
(a} Offense defined.v-A person commits .a felony of the.
3.
Exhibit B- Page 3
·---......._.,..... ,_.. _ . ....-. .-········-----------·----------------------
_,
·---· ·-·····----.-... -
third degree if that person uses a communicatiorr
tacihty to cornrnit, cause or facilitate the commission or
the attempt thereof of any crime which constitutes a
felony under this title or under the. act of April 14,. · 1972
(P.L. 233. No.. 64), known as The C-ontrolled Substance.,
Drug, Device and Cosmetic Act. Every instance where
the. communication facility is utilized constitutes a
separate offense Under this. section.
(c) Definitron.�-As used in this section. the term
"cornrnunication facil'it{ means a public or private
instrumentality used or useful in the transmission of
signs. signals, writing. images; sounds, data or
intelligence of any nature transmitted in whole or in
part. including, but not limite.d to, telephone, Wire,
radio. electromagnetic, photoelectronic or photo-
or
optical systems the mail.
18 Pa . .C.S. 7'512(a).(c).
General requirements.of Culpability
(a} Minimum require merits of cµlpability.��Excepf as
provided in section 305 o.f this title (relating to limitations
on scope pf culpability requirements}; a person is. not
guilty of'an offense unless he acted intentionally,
knoyvingfy; recklessly or negligently, as the law may
require, with respect to e.ach material. element of
the offense.
(b) .Kinds ofculpability defined.--
(1)A person acts intentionally with respectto a
material element of an offense when:
(i) if the element,nvolves the nature of his
conduct or a resultthereof it is his conscious
object to engage in conduct of that nature or
a
to cause such result; ahd
4
Exhibit B - Page 4
· ·········"-----·--··-·------·--------------------
(ii) if the element involves the attendant
circumstances, he is aware of the existence of
such circumstances or he betieves or hopes
that they exist.
(2} A person acts knowingly with respect to amateriai
element of an offense when:
(i) if the element involves the nature of his conduct
or the attendant circumstances, he is aware that
his conduct is of that nature or that sL1d1
circumstances exist: and
(ii)if the element involves a result of liis conduct.
he is aware that it is pra.ctically certain that his
conduct will cause such a result.
�· . .. .
18_Pa .. C,_§. 302(aL@.:
Trial Evidence
In his brief. Defendant argues that the charqes.aqainst him resulted from a
Pennsylvania State P6Hce investigation $urveilling the. internet for Qhild oornoqraphy
which found th atone. file containing twenty images of chifd pornography had been
downloaded to an internet protocol address .traced to Defendant. Defendant claims that
no evidence exists that the images had been viewed or forwarded by him and that no
other evidence of pornography had been found on Defendant's computers.
(Oef�ndanrs post.:.trial brief, pg. 2). Further. Defendant claims that the
Commonwealth's only evidence indicates thatthe file In question had been downloaded
to a networkwhich others could access and the only known person who had viewed it
.5
Exhibit B - Page 5
..-, ------·---·--- ------------------------·
wasthe irivestiga.ting state police officer. A review of the relevant evidence follows to
place the issues as argued by Qe.fendant in context .
. At trial, the Commonwealth presented testimony .on the child porncqraphy aspect
of the case from Permsytvanla State Police Corporal John Powis who had been present
and ihtervievved Defendant on March 8, 2016 during the police search of Defendant's
home when various electronic devices were confiscated from inside the home.
Additionally, the Corntnonwealtb called Pennsylvania State Police Sergeant Jphn
o·NeiJJ. Supervisor of the Computer Crime Unit and Bureau of lnvestigatio.n; Gerhard
Goodyear. retired Pennsylvania State Police Corporal last assigned to the Computer
Crime Unit: Robert Krehling, Pennsylvania State Potice digital forenstcexaminer:
together with Defendant's teenage son. Defendant testified in his .own defense.
Gerhard Goodyear, since. retired, was a Pennsylvania State Police Computer
Crime Unit undercover investigator of possession and distribution of child pornography
offenses. Goodyear provided de.tailed evidence to the jury about the use and operation
of computers. His approximate four hundred police investigations involved file sharing
or peer-to-peer networks by which two or more· computers on the. samenetwork share
files with alt.other persons utilizing.compvter.s on that network. Various reasons.exist
for a computer user to desire to utilize. a file sharing network, including the avallabillty pf
material and efficiency afforded a user in. retrieving desired material' on tl:,e internet
Goodyear explained that if a person Wants to be part of a file sharing network to obtain
child pontogra:phy, he has to search t.he internet for a specific program that.allows him
Exhibit B - Page 6
---·-·-·-····· . ··--·-··-··-·-··-·-···..-·...--....---·-··---
····-·····--··-.. ····---.. -·-·..··-..-----·····-.. · ·-----------------------------
to join p peer-to-peer network, After finding and selecting the desired proaram, the user
must download it and install it on his computer. Next, he must set the proper
configuration on nls computerto make the program function for the network he desires
to join. Thereafter; he must conduct searches on the computer to find those
pornographic files in which he is interested. He would .do so by typing and entering a
search. term in the search window that appearson his computer screen. Upon receiving
a Hst of files in response to the search term he entered he would then select the file or
.e
files that he desires to receive and review and then .cJo.wnload those fries onto his
computer.
Specific search terms for child pornography are trequentty used to locate tiles
¢.orifaining that contentby those interested in. doii1g so, incltJding "PTHC" {pre-teen rratd
core) and ''PTSC'' (pi'e-teeri soft core). If such terms aretypeo on generally used sites
by computer users - for example, a Google site - messages will appear vJarhing the
users "Get Help!" that chjlo pornoqraphv is a crime. However, such material is
accessible. by other means.
According to Goodyear; mostftle sharing programs are specific to one network.
However, Shareaza - the program Defendant utilized - .is unique in that it is a specific
program thatatlows a user to search several networks at the same time .. Shareaza has
a "setup wizard" for a user to follow to install that program which includes various setup
screens with questions thatmust be answered by the user; including whether he wants
to .share fileswith others using the peer-to-peer network. After the program is installed
by the user. a. window wHI appear on the user's computer to allow the user to enter a
search term, When the search term is typed on .the. screen by the user, he musthit
7
Exhibit B - Page 7
"enter" to continue the search. Names of files matching the search term would then be
displayed on the user's computer screen. If the user finds a file he desires to retrieve,
he must hit "oownloac" to receive it on his computer. If the user places rnateriat that he
downloads
. . . into shared
. . files
. tnatrnateriaf
. is . then
. . .. . .. to .be retrieved
available . . . from his
.
computer by other users of the peer-to-peer network.
DLiring his investigation, Goqdyear utilized .the etli1ul.e network. Police do not
share fil�s on that.network but simply use itto search the internettor known files that
have been previously identifiedas child pornography-related. Po!lce use th.e unique
hash values of those known files.to identlfy ccmputets that are sh�;Hing c.hdd
p9mo.graphy .and then d.own10130 the files retrieved from those users' computers vta an
automatedprocess to the police computer.. The software police use conducts only
;•stngre source downloads" so that all parts. of each download are retrieved from. one.
user· source rather than from multiple users who are using the peer-to-peer networx.
Police can thereby be assured that an t;ntire file which they find ahd do\-v.hload came
from one particular computer:
Herein. on December 20, 2015, the potice investiqative computer located antj
then downloaded suspected files of child pornography which Goodyear reviewed. He
dete�rnined the IP address of the computer from Which the suspected pornography had
been transferred and found that the service provider for the user of that computer was
Frontier Communication.. Then he obtained a court order to retrieve information from
Frontier Communlcatlonto identify the subscriber of the service as of the date: and fin1e·
that the child pornography had been received from that computer l:).y police. Frontier
Communication indicated that tile subaoriber wae DefendantKristin Delorge of 131
8'
. Exhibit B- Page 8
�·--.-------, � _ ..__
, ..__ --···--····-·--�-·-···-, �.,- .
Breisch Road. Ringtown. According to Goodyear, a computer utilized. under
Defendant's Frontier Communication subscription had been turned "on" and the
Shareaza program had been running on that computer at th� time ponce received the
suspected pornographic material from iL
Goodyear originaliy·dbWriloadedtwenty irnaqes of suspected child pornog.raphy
lo start his investigation. Atterthe search Of Defendant's home; Goo.dyearwas provided
ten files recovered by pouce from one of Defendant's computers. The computer was
located on a. shelf in what was determined to be Defendant's bedroom. One file
recovered frorrrDelendanf s computer matcrrsd a file Goodyear downloaded during his
i n iii al investigation.
Robert KrehlJng is a digitaJ forensic: examiner of electronic storage devices with
the Pennsylvania State Police. He was present in a mobile examination van located
outside Defendant's home on Marer. 8,,. 2016 when police searched the home.
Pennsylvania State Police $ergeant John O'Neill identified evidence fo1Jn.d at the scene
of the search ofDefendant's home, including various electronic devices which were
provided to- Krehliilg. While ori site, Kreh ling examined the contents of all electronic
devices police.found at the home .. One laptop computer, a Dell latitude, was found to
have files .containing suspected images of child,pornography. Eight images were in a
file named PTHC Vietnamese Child Brothel and two irnages were from a file named
PTS,C Y: Salome. By analyzing the metadata on Defendant's computer, KrehHng
determined that the PTHC Vietnamese Child Brothel file had been. created and
downloaded onto Defendant's.. computer at 1 :40 a.m. on December 19, 2015. The last
access of thePTHG Vietnamese Child Brothel fri'.)age .file had occurred at 1 :4.4 a.rrr. that
s
E�hibit B- Page 9
�-- . ----------·-·-··-..·-·
,,_ _,_,,_,_,,_,_,
, , - ----·-·---
-"·-----.---..-----·
-----------·-·-··--·------- _______
,,_
d;:.iy on Defendant's computer. As recorded in the metadata, the. PTSC Y Salome file
was created, dowrtloadsd and accessed ah Defendant's computer on December 19.
2015 at 12:22 p.rn. After the images were dcwnloaded oh Defend ant's computer, they
were then offered to be shared with others on the rietwork."
Pennsylvania State Police Corporal John Powis was present' when the search
warrant was s�rved at Defendant's home on March a. 2016. Corporal Powis
interviewed Defendant while the search was conducted. by other police. After various
illegal drugs and paraphetnalia were located in an upstairs bedroom whlch Defendant
indicated .was his . Defendant.told CorporalPowls that all of the items were his for
personal use. Defendant a1$0 told Corporal Powis that he had internet service at the
home, that Frontier Cornrnunicatlon was the provider and that his router and computer
were password protected. Additionally, Detendant stated thathe was aware of file
sharing programs and that he had used them in thepast.
W.hen Corporal Powis described to Detencant an image and the file name from
which the image had been previously downfcaded.by Corporal Goodyear during the
latter's investigation - namely, the file ''PTHC Vietnamese Child Brothel" and the image
being thatof a prepubescent child about four to five years old appearing completely
nude While sitting on and pe rtorm: ng oratsex Oh a nude ad u It male - and asked if
Defendant recognized them, Defendant said that he did, that he had seen the i1i1age. on
. .
his son's laptop in the past but that he did not do anything about it and was not able to
tell CorpcralPowiswhy he had not. Defendant did not tell .Corpora/Powis that his son
had access to his (Defendant's) computer. When Corporal Powis told Defendant that
2
Ten.of the images found on Def.endanrs computerand exhibited to.the j:vry need net be describeo a$.
Defehdam has riot contested their constituting child pornography.
10
Exhibit B - Page l O
.., ...,...,,,..... ·····---,,--·--··-·,.----·---
t!1e laptop found in Defendant's bedroom had images of child pornoqraphy on rt, that
those. matched the ima.g.es that.had been downloaded i;:,y Goodyear in his lnvestiqafion
and that the file sharing program Shareaza was associated with that laptop, Defendant
stated that the laptop was his. and thatit it was on his computer, "Ill take responsibility
In addition to thelaptop computer located i11 Defendant's bedroom. police found
various electronic devices in the home, including a l�ptop in anoiherbedrccm together
with multiple computer parts and towers. Defendant also told police that he. repaired
computers.
Defendant's tcurteeo-vear-crd son testified that at the time of the downloading
(December 19. 2015}, he would have beentwelve years. old and did not reside with
Defendant Wheri he visited his father, the child took his own computer to his father's
home to use for gaming and Videos. He had not been familiar with the program
Shareaza and had not used file sharing. He further testified that he had not
downloaded a vietnarnese Child Brothel file an.d that hehad used Defendant's
computer only One time for gaming.
Defendant testified in his own defense . According to Defendant he had been
employed outside the borne atthe tnne of the incident in addition to havinq performed
computer repair work for people at hls home. Defendant stated that he could install
computer hardware .and software. Defendant did not remember being asked by
Corporal Powis about the internet address of a. child pomoqraphy site but he did r�call
having heard the description of the porno.gi'aphi·c depiction. Defendant claimed recallfng
that his son and his nephew had been at his home the weekend .of the December, 2015
11
Exhibit B - Page 11
---- -··--�-·--··-·-- ..... ·-- .. --:------··-.---·-· �
·---·------·---
downloading and that it was possible that they could have been using his computer,
Defendant also stated that when talking to Corpora! Powis. he had taken responsibility
for everything in the house but that he had not known that Corporal Powis was referring
to child pornography atthe time.
Defendqnt .claimed that the subject laptop computer was in his bedroom on a
shelf. that it was. "for the kids to play video games and that everyone in his home had
1'
access to his computers. Defendant testified that he had been familiar with tue sharirtg
prosrams, had used them, was aware that when installing such a program there is an
instauaiion rnenu that must be gone through to install it. that he had used Shareaza in
the past and that he, was familiar with the interface of the proqrarn. Defendant further
testiflec that he knew that when a person downloads flies using a file sharing program
thatthose files. would be. "shareable." Defendant also stated that his computer and \Ni-
. Fi had both been password protected,
Discussion
In his post-trial brief, Defendant questions both the sufficiency and weight of the
trial evidence. A weight of the evidence. challerrqe rnay be preserved by raising the
claim .in a motion for new tri�.1 orally on the record orln written motion before sentencing
or in a post-sentence motion; Pa.R.Grim.P. 607(a}.. Defendant did notraise the weight
claim before sentencing or in his post-sentence motion. Although Defendantfirst.
mentioned · the issue in his post-sentence brief; the .Court has. evaluated the claim ano
finds no mentto the challenge.
12
Exhibit B - Page 12
...___ --.._ ... -•••,- -·-v-v ... ·--......... _.___,,..,.. , �
,----------------------�,--------·---,--·-----
The jury was free to believe all, part or none. of tne trial evidence a·nd determine
witness credibillty, In his argument; Defendant does not �ttack the credibility ofthe
Commonwealth witnesses or the reliability of the evidence they offered. Rather. his
argument appears to be thatthe Court should nullify the verdict due to evidence that
indicates Defendant had oct accessed the child pornography after December 19, 2015,
The Court con:.sidr:;re.ci that evidence when sentencing De.fend ant at the low end of the
mitigated range of the sentencing guidelines on the child pornography dissemination
charges a rid lmpos fng all of those sentences to n,.i n concurrently with the sentence 01i
· the controlled substance felony offense.3 Nevertheless, such consideration does not
support finding tha.t the verdict was agair.ist the. w.eight of the evidence as. the verdict
was not contrary to the evidence, Comntonweetthv. Gibs�m, 720 A.2o 473 (Pa. t998)
(courtmay award new tri�I in its discretion if verdict so. contrary toevldence as to shock
sense orjustice).
In evaluating a sufficiency of the evidence challenge, a court is to determine
whetherthe proofat tria! and. the reasonable inferences arising therefrom. when viewed
in the light most favorable to the verdict; winner- the Commonwealth - support the
conviction beyond a reasonable doubt. In a jury trial. if sufficient record evidence exists
to have allowed the fact-finder to find every element of the crime at issue establlshed
beyond a reasonable doubt, the evidence is sufficient to sustain the verdict. In
determining the sufficiency of the evidence. a court is not to re-weigh it as the jury had
been free to believe all, some or none of the evidence it heard. The Commonwealth's
sufficie.ncy burden maybe met by direct or circumstantial evidence or a combination of
3
The trial evider,ce does not suppot.t Defendant s argume.r,t.ihat no other .pornogfaphy ·'of any klild'' was
found on his computers,
13
Exhibit B - Page 13
....... ·-·· .-··-····-.·---····------··'"'•''-'··---·--·---·······---·-
. .
both. Unless it is found that the evidence received is so inconclusive and weak that no
proba.oility pf fact could have been drawn from all the circumstances, doubt as to an
accused's guilt must be resolved by the jury. Comn.1g.11wealth v. Rodriquez, 141 A.3d
52.3 .. 525 {Pa. Super. 2016).
In his brief, Defendant claims that the Commonwealth's proof failed to establish
that Defendant knowingly downloaded depictions of child pornography sc to be
convicted of knowingly possessing or controlling a computer depiction of such material
in violation of 18 Pa.C,s... .6.312(d). The evidence the.iurv considered included testimony
that Defendant installed the file sharin9, proqramSnareaza witb access to multiple
networks on hts computer. Not only would one installing such a program be required to
go through. an tnstaltation process during which the user is informed of the nature of the.
program and of fire sharing but Defendant, a computer repairman, acknow.ledge!:l both
to police and while testifyin� at trial about his knowledge of-computer operation, of his
havinq used fil� sharing programs including Bhareaza, and. ofknowihg how they
operated ..
To download child pornography; a computer user would firstbe required to type
terms in a search bar for the kind of material the user was .intending to find_ Files cif
child pornography often are located using various known particularized search terms
including PTHC and PTSC. After the computer delineates flies that match the search
terms th at had been entered, the user would not· have access to or possess the chi id
pornography contained in any file until the. user actually selects a file or files. he desires
andthen downloads it/them onto his owncornputer. Herein, Defendant's computer.
which was password protected. was found on a shelf in his bedroom, Files from chiid
14
Exhibit B - Page 14
�--�---··----· .. ··----
pornography sites we.re found on the computer and ten of the depictions located in two
of the files were exhibited to the jury. The jury heard Defendant's son -who Defendant
suqqested may be to blame - testify that he used Defendant's computer only one time
for gaming and that at the. relevant time he had not beerifamiltar witrr file sharmq,
Shareaza or a file named. PTHC vietnarrrese Child Brothel.
Defendant also claims that the evid.e.nce was insufficient Jo prove a violation of 18
Pa.C.S. 6312(c) because.tre evidence did net establisf thatthe child pornography had
been disseminated from Defendant's IP address sn.d that the only known person.to
whom the depictions had been disseminated had been the investigating police officer.
However, Commonwealth wrtness.Oerhard Goqdyec1r specifically testified that based
upon the program the police utilized in their investigation. he. knew that the child
pcrrroqraphy depictions aU came from Defendant's computer IP address. Further. the
computer in Defendant's bedroom was the only .devlce in the home which had been
confiscated during the police search which had the same irnaqes. fo.und during
Goodyear1s initial police investigation. Section 6312(c) prohibits the knowing
dissernmatlon of the prohibited material or the possession of such materialfor the
purpose of dissemination. Oefenoant understood that the Shareaza program provided
for fil� sharing of material on one's computerby making it available to other computer
userswhowere n.1nning the same prcqrarn. The jury wasfree to believe the evidence
of the Commonwealth.along with Defendant's incriminating statements.and testimony in
determining whether the computer-savvy Defendant - who installed the file sharing
program while wen aware of what such program involved, sought, then downloaded and
then placed child pornography in files on rus computer to be shared with others -
15
Exhibit B - Page 15
'·�- ·----- .... -··- -----·--� ....-...... ...... ,. ·�-- . � ·�·
·-·---······ ·········-·-·------·-------·-·--- ·------ ·-·-·-·--·-··-··----..·---···-·-
kn.oviingly disseminated or possessed the material for the purpose of disserrnrration In
this regard. one acts knowingly if "he is aware that itispartlcularly certain that his
conduct will cause such a result" C1..�_ PaJ;.a:.�· 3.02(bl ).
Defendant further argues that subsection (f).of 18. Pa.C.$.. 6312-4 ofthe Crimes
Cede precludes his conviction because the evidence only established that police had
i·eceived the child pornoqrapny Jrorn Defendants computer and they were "quatifred" by
law to view the material. In relevant part, 18 Pa.C'.S: 6312 ex¢epts ''[a]ny materia! that
is viewed c possessed, controlled, brought or caused to be brouqh; ihta this
Commonwealth, or presented, for a bona.flde educational, scientinc, governm.ental or
judicial purpose." 18 Pa.C.S. 63.12(f}{'!J Although depictions uti.lized by ponce
investigators and at trialconstitute matertal.excepted from crimina! prosecution, contrary
to Defe.ndanfs argument that same material in the possession of Defendant was not so
excepted.
Finally. Defendant cites several cases vvh.ich he. argues support the positions.
raised in his brief First. he claims that in Commonwealth v. kushmar,ik; 154 A.3d 862
(Pa. .Super. 2016), the Pennsylvania Superior Court found that the.acnon of the
appellant had not enlarged the market for .child pornography and was not the kind of
conduct the.raw sought to sanction - whith Defendant claims is similar to his situation.
First it must.be noted that the Superior Court issued a nort-precedential memorandum
opinion in that case with the citation Defendant utilized in his brief actually being a
�--
·---..... ,.........,.......,_ .....
.: The Crimes Code pr0.vides m pertine11i pan:
(f) Exceptmns. --This section does not apply to any 0f the fdllcwing:
·· · (1) A'i'ly rnaterial that is. viewed. nossessed, cqrfr.oiled,
bro.ug tit or'causeo to .oe b.rought into m.1s c e-nrnohweattb,
or presented, for a bona fide educational, scientific,
gover.nrner.tal or Judicial purpose,
1.8. Pa,C,S c., 6312(1)(",l.
16
Exhibit B- Page 16
................... ""·-·-------·..···-----·--···-···-- ·----
reference to atable rather than a published opinion .. Per Pa. Superior Court LO.P.
65. 37, such an opinion ls not "to be relied upon or cited by a Court or a party in any
.other action or procesdinq" except as otherwise. delineated � none of which exceptions
apply.
. in thtscase.".
Defendant next clalms that based upon QQ[!]'fiiom;vealth v.,_.lsk'Jt 83 A.3d 457
(Pa. Super. 2013). ··a.lssernination" under , 8 Pa.c.s ..5903(c) requires.. some affirmative
act by an accused enc that the Cornmonwealtn's evidence estabushec that the images
1n this case were never viewed and the file was neveropened except by the police
investigator, Consequently. Defendant arques, no proof existed �hat th� irnaqes wer�
depicted on his computer. In Levy, the question before Superior Courtwas whether
sending a minor an e-mail with a. link to pornographic materials constituted
dissemination of explicit sexual materials iri violation of 18 Pa.C.S. 5903. Superior
Court ceterrnlned that an e-mail sent containing such a link constituted dissemination of
the prohibited materials and the fact that "the recipient musttake the cursory step of
clicking on the link" did not "remove that !ink from the general definition of 'explicit
sexual material'." Levv. supra. at 46.6.
Urilike1n Levy; Defendant was not convicted of an offense under 18 Pa.C.S�
5903{c}. Rather, Detendantwas convicted.of violating 18Pa.C.S. $.312(£} ahd (d)
Which prohibit .:1 person from intentionally viewing or knowingly possessing or controllinq.
a prohibited depiGtion and of the>knowihg dissernination er-possession of such deetction'
for purpose of disse.rriiriatipn. The evidence established that at 1 AO a.m. and 12:22
p.m . on.December 19, 2015, a user of Defendant's password protected computer
............-, ....·--···- -, ...... ,--.·.----
� The conduct at issue in the non-preceeentlat case also di.a not involve deJ)ictions ofiprol1ibited sexual
acts" clS herein.
17
Exhibit B - Page 17
�-· -···-··-----.. ·-- ·----· --·-· �----- _,_
---------� __ ·-·-··-----.
searched for, selected and then downloaded files. of chHd pornoqraphy onto Defendant's
computer, with two ofthose files identified with the names of PTHC Vietnamese Child
Brothel and PTSC Y Salome. Subsection (d) of t.8 Pa.:c.s. 6312 prohibits both the
intentiona! viewing and knowingly possessing or controlling the prohibited material. The
evidence establishes Defendant knowingly possessed or controlled the. material.
Further; the police investigator received the material using the peer-to-peer network
While Defendant's computer was turned "on" and Defendanrs
. file·:. -:s..haring program was
running. Via that. peer-to-peer network. the depictions wen�. uploaded from Defendant's
computer and transferred to the police computer upon which the depictions were
downloaded.
Finally, Defendant cites Commonwealth v. Diocloro, 970.A.2d 1 HJO (Pa. 2009}for
the proposition that downloading, saving or printin9. images of child pornography must
be established and tha! the Commonwealth only proved that an unopened file had-been
downloaded by Defendant- not that he knew of its. existence. Contrary to Defendant's
argument, however. evidence at trial included testimony that on December 19; 201.5 at
1:40 a.m., a file named PTHC Vietnamese Child Brothelcoritc1ining pornographic
images of childrerrwas selected from the internet, a.fite was created on Defendant's
computer f9r the images and the images were dowruoaded phd accessed on hJs
computer. Similarly, another file containing child pornography with the name PTSC Y
Salome was selected, and onewas created, downloaded and accessed onDefendant's
computer on December 19, 201.5 at 12:2.2 p.m, The Pennsylvania Supreme Court in
[)tQ.g_gro, stated that the Commonwealth need not prove an accusedpossessed Child
pornography to establish a violation 0.f .18 Pa.C.S. 6312(d) if It can prove.Ihat he
18
Exhibit B ..... Page 18
knowingly controlled it as the intent ot the statute· tsto protect children by prohibiting the
production and trafficking of child pornography .. 1.Q.,, at t107. The trial evidence does not
support Defendant's argument that the Commonwealth's proof failed to establish his
violation of the law.
In light of the foregoing, the evidence at trial also sufficiently established that
Defendant. used a comrnunicatton facility (as defined in 18 Pa.C.S:.. 751J1£1) io commit.
cause or f�cilitate a felony. Besides his argument about the sufficiency of evidence on
the underlying felony charges. Detendantdces not argue any lack of sufficiency with
respect to any particular element of the criminal use of communication facility offense.
{18Pa.C.S. 7512(a)).
Because Defendant'spost-trial motion, as supplemented by his brief, is found to
lack merit it.is beirig denied.
19
Exhibit B - Page 19
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COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY�-CR.!MINAL DIVISION
COMMONWEALTH OFPENNSYLVANI.A No .. 915-'16
vs.
KRISTIN DELORGE.•
Defendant
District Attorney's Office� for the Commonwealth.
Frank R. Cori, i;squire • for D�f�ndant
ORDEROF COURT
RUSSELL, J.
AND NOW, this day of May, 2018,.upon.consideratioh bf Defendant's post·
sentence motion and pursuant to the Decision iss.ued this day. it is hE=1'eby O�OERED
Defendant's post-sentence motion is O.ENIED.
DEFENDANT rs NOTIFIED THAT HE HAS THE RIGHT TO APPEAL THIS
DETERMINATION TOTHE PENNSYLVANlA SUPERJ.OR COURTWiJHIN TH1RTY(30)DAYS
QF THE DATE OF ENTRY OF THIS ORDER. D.EFENDANT HAS THE RIGHT TO THE
ASSISTANCE OF COUNSEL IN THE PREPARATION OF ANY APPEAL. IF DEFENDANT IS
INDIGENT. HE MAY APPEAL 11\J FORMA PAUPE.RIS AND oerAINREPRESENiATION
FROMage20
....._ ,..
-··-----·---· ... -..
surrender to the Schuyfkil! County Prison to o.egin the service of the terras otmcarceraflon
lrnposed at his sentencing.
BY THE: COURT.
.;,/··_/
·' .,,,
. /�,. ". ·�. ":!··.: ··.. ,.�..·� (.:
______._. .. _._ �
, ·_-_ J.
2.
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..... ·-·--...........,......._. ............ ... ...... , .........,,....... ,-...·-·--····-·-----"'·-··-·---·-· .. . ----..-... ·····-.
·----·-··-·-···-- ..---·--·-