Com. v. Soto, L. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LUIS ENRIQUE SOTO :
:
Appellant : No. 793 MDA 2018
Appeal from the Judgment of Sentence April 13, 2018
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001464-2017
BEFORE: OTT, J., NICHOLS, J., and PELLEGRINI, J.
MEMORANDUM BY OTT, J.: FILED AUGUST 16, 2019
Luis Enrique Soto appeals from the judgment of sentence entered April
13, 2018, in the Lancaster County Court of Common Pleas. The trial court
sentenced Soto to an aggregate term of three to 10 years’ imprisonment,
following his jury conviction of three counts of sexual abuse of children
(possession of child pornography) and one count of criminal use of a
communication facility.1 The charges were filed after an online investigation
revealed Soto possessed files containing child pornography, which were
subsequently recovered from his cell phone following the execution of a search
warrant. On appeal, Soto raises the following allegations of trial court error:
(1) the court erred in denying his motion to suppress (a) the search warrant,
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 Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 6312(d) and 7512(a), respectively.
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which was not supported by probable cause and was overbroad, and (b) his
statements, which were obtained in violation of Miranda v. Arizona, 384 U.S.
436 (1966); (2) the court erred in denying his pretrial motion for nominal bail;
(3) the court erred in denying his motions in limine seeking to preclude the
Commonwealth from presenting (a) uncharged images and videos, and (b)
the latter portion of his redacted police interview; and (4) the court erred in
using an enhanced offense gravity score to calculate his sentence at Count 2.
For the reasons below, we affirm.
The pertinent facts underlying Soto’s conviction are as follows:
[The present] charges resulted from an investigation initiated by
Detective Gregory Wahl of the Office of the District Attorney of
Lancaster County. Detective Wahl was conducting an online
investigation on the BitTorrent peer-to-peer sharing network.[2]
During Detective Wahl’s investigation, he encountered a device
connected to the internet using an IP address 173.184.103.146,
which enabled him to download twenty-nine (29) digital images of
files of child pornography through the peer-to-peer file sharing
network. On January 9, 2017, Detective Wahl obtained a court
order directing Windstream Communications to identify the
subscriber of said IP address. On January 18, 2017, Windstream
Communications provided information to Detective Wahl that the
subscriber was [] Luis E. Soto, residing at 43 East Walnut Street,
Ephrata, Pennsylvania. Accordingly, on or about January 30,
2017, Detective Ryan Yarnell[, a member of the District Attorney’s
Computer Crimes Task Force,] obtained a search warrant for
[Soto’s] residence[ based on the information obtained by
Detective Wahl].
Trial Court Opinion, 7/10/2018, at 1-2.
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2 “BitTorrent is a communication protocol for peer-to-peer file sharing (P2P)
which is used to distribute data and electronic files over the Internet.”
https://en.wikipedia.org/wiki/BitTorrent.
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On January 31, 2017, at 6:27 a.m., Detective Yarnell, accompanied by
11 other law enforcement officers, executed the search warrant at Soto’s
residence. Detective Yarnell and some of the other officers were dressed in
suits, although others were in uniform. The detective explained to the
residents, including Soto, the purpose and scope of the warrant. One of the
officers asked the residents if they were familiar with BitTorrent, and Soto
indicated he had it on his cell phone. Task Force Detectives Sarah Goss and
Graeme Quinn then invited Soto onto the front porch to briefly discuss the
matter with him. Detective Goss explained that there was child pornography
downloaded from the home, and asked him if he would accompany them to
the police station so they could ask him some questions. Soto agreed.
Although the officers asked him if he wanted to drive himself, Soto requested
a ride from them so that his son would have use of the car. Soto was not
placed in handcuffs or restrained in any manner. See N.T., 9/22/2017, at 30-
32, 49, 52, 66-67.
At the Ephrata Police Station, Soto was led into an interview room. He
was not given Miranda warnings during that 45-minute interview, but agreed
to have the interview recorded. When Soto stated he did not want to answer
any more questions, the detectives ended the interview and drove him home.
See id. at 53, 58-61. After the forensic examination of Soto’s Samsung
Galaxy cell phone revealed child pornography on the phone’s internal hard
drive and SD card, Soto was charged with three counts of sexual abuse of
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children (possession of child pornography), and one count of criminal use of a
communication facility.
On July 26, 2017, Soto filed an omnibus pretrial motion seeking to
suppress (1) any evidence recovered from his cell phone because the search
warrant was not supported by probable cause and overbroad, and (2) his
statement to police because it was the fruit of the unlawful search warrant
and he was not provided with his Miranda warnings. Following a two-day
hearing, the trial court denied the motion on November 20, 2017. On January
17, 2018, Soto filed a petition for nominal bail pursuant to Pa.R.Crim.P.
600(B). The trial court conducted a hearing on January 31, 2018, and denied
the motion on February 1, 2018. Relevant to this appeal, Soto also lodged
written and oral motions in limine seeking to preclude the Commonwealth
from introducing at trial certain portions of his statement to police, and
uncharged images and videos recovered from his cell phone’s internal hard
drive. The motions were denied by the trial court.
The case proceeded to a jury trial conducted on February 12-15, 2018.
At the conclusion of the trial, the jury found Soto guilty of all charges. On
April 13, 2018, the court sentenced Soto as follows: (1) a term of one and
one-half to five years’ imprisonment for Count 1 (sexual abuse of children);
(2) a consecutive term of one and one-half to five years’ imprisonment for
Count 2 (sexual abuse of children); (3) a concurrent term of six months to
two years’ imprisonment for Count 3 (sexual abuse of children); and a
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concurrent term of six months to two years’ imprisonment for Count 4
(criminal use of a communication facility). This timely appeal follows. 3
The first two issues raised in Soto’s brief challenge the trial court’s denial
of his motion to suppress the evidence recovered during execution of the
search warrant. When considering a challenge to the denial of a suppression
motion, “[o]ur standard of review … is limited to determining whether the
suppression court’s factual findings are supported by the record and whether
the legal conclusions drawn from those facts are correct.” Commonwealth
v. Green, 204 A.3d 469, 480 (Pa. Super. 2019) (quotation omitted). We are
not bound by the trial court’s legal determinations. See id.
In conducting a review of the underlying basis for a warrant, we must
bear in mind the following:
A search warrant may issue only upon a demonstration of
probable cause by an affiant. See generally Commonwealth v.
Gary, 625 Pa. 183, 91 A.3d 102, 107 (2014). The existence of
probable cause is measured by examining the totality of the
circumstances. Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct.
2317, 76 L. Ed. 2d 527 (1983). “Probable cause exists where the
facts and circumstances within the affiant’s knowledge and of
which he [or she] has reasonably trustworthy information are
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3 On May 15, 2018, the trial court ordered Soto to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) within 30 days.
Soto filed a concise statement on June 15, 2018, which appears to be one-
day late. However, while the court’s concise statement order is dated and
stamped May 15th, a second stamp on the order appears to indicate copies of
the order were sent on May 16th. Because the trial court addressed the issues
raised in the concise statement in its opinion, we decline to find waiver here.
See Commonwealth v. Brown, 145 A.3d 184 (Pa. Super. 2016), appeal
denied, 165 A.3d 892 (Pa. 2017); Commonwealth v. Boniella, 158 A.3d
162, 164 (Pa. Super. 2017).
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sufficient in and of themselves to warrant a [person] of reasonable
caution in the belief that a search should be
conducted.” Commonwealth v. Johnson, 615 Pa. 354, 42 A.3d
1017, 1031 (2012) (internal quotation marks and citation
omitted). A magisterial district judge, when deciding whether to
issue a search warrant, must “make a practical, common-sense
decision whether, given all of the circumstances set forth in the
affidavit ... including the veracity and basis of knowledge of
persons supplying hearsay information, there is a fair probability
that contraband or evidence of a crime will be found in a particular
place.” Id. (citation omitted). Conversely, “[a] court reviewing a
search warrant determines only if a substantial basis existed for
the magistrate to find probable cause.” Id. (citation omitted).
Commonwealth v. Jacoby, 170 A.3d 1065, 1081–1082 (Pa. 2017), cert.
denied, 139 S. Ct. 58 (U.S. 2018). When a defendant’s motion to suppress
is based upon the lack of probable cause, “[t]he burden is on the
Commonwealth to show that the magistrate had a substantial basis for
concluding probable cause existed.” Commonwealth v. Leed, 186 A.3d 405,
413 (Pa. 2018).
By way of background, the affidavit of probable cause attached to the
search warrant details Detective Wahl’s investigation in paragraphs 26-35.4
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4 Preliminarily, we note the search warrant application, and accompanying
probable cause affidavit, introduced into evidence by the Commonwealth at
the suppression hearing was missing a page. See N.T., 9/22/2017, 19-26.
Although the Commonwealth attempted to introduce the missing page into
evidence, the trial court found the missing page was not signed by the
magistrate and contained a “disparity as to the warrant control numbers and
pagination scheme,” and the Commonwealth “was unable to adequately
explain why said page was no longer attached to the original search warrant.”
Trial Court Opinion, 7/10/2018, at 14. Accordingly, the trial court did not
“incorporate the missing page into the search warrant for consideration,” but
rather, limited its review to the four-corners of the signed warrant. Id. at 15.
We similarly limit our review on appeal.
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See Affidavit of Probable Cause, 1/30/2017, at ¶¶ 26-35. The investigation
began when Detective Wahl identified an IP address on the BitTorrent peer-
to-peer (P2P) file sharing network that was associated with a specific torrent
file; that file, in turn, “was identified as being a file of investigative interest to
child pornography investigations.” Affidavit of Probable Cause, 1/30/2017, at
¶ 27. Detective Wahl then downloaded 50 files from that IP address, 29 of
which “depicted child pornography as defined by [18 Pa.C.S. § 6312].”
Affidavit of Probable Cause, 1/30/2017, at ¶ 28. After listing the 29 files, the
affidavit further avers:
The above files were mostly of teenage girls in a shower or bath
naked and were “LS Models”. The rest of the images your Affiant
would label as erotica. There were additional partial downloads
that were not included in the above list where your Affiant could
identify Child Pornography.
Affidavit of Probable Cause, 1/30/2017, at ¶ 29.
Soto first argues “[t]he factual averments contained in the search
warrant application fail to establish probable cause of a pre-existing or
ongoing crime.” Soto’s Brief at 24 (footnote omitted). He contends the
affidavit does not explain how a computer is “‘associated’ with a torrent file,”
“how or why or who identified at least one of the 270 files as being of
investigative interest,” and why the affiant could obtain only “partial
downloads” of certain files. Id. at 25, 27. Moreover, Soto insists the
description of the images in paragraph 29 “fails to allege an infraction” of
Section 6312. Id. at 27. He emphasizes that the statute “does not criminalize
all visual depictions of nude children[;]” but rather, only those under the age
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of 18, “if such nudity is depicted for the purpose of sexual stimulation or
gratification of any person who might view such a depiction.” Id. at 26. The
affidavit’s reference to “teenagers” could include those who are aged 18 or
19. Soto maintains his possession of an image of a nude 18-year-old would
not be prohibited by the statute. Furthermore, he argues the affidavit does
not include any corroboration of the information from Windstream linking the
IP address at issue to Soto. See id. at 30-31.
The trial court addressed Soto’s first claim as follows:
Detective Ryan Yarnell created the search warrant for the
defendant and his premises based on information received from
Detective Wahl of the Lancaster County District Attorney’s Office,
which identified the residence of the defendant as the location
where child pornography was being downloaded. Detective Wahl
obtained the court order and performed the preliminary
investigation into the downloading of child pornography or
inappropriate digital images at defendant's residence.
Paragraph 35 of the affidavit in support of instant search
warrant states that “([o]n Monday, January 9, 2016, Detective
Wahl mailed a Court Order in order to identify the subscriber of IP
address 173.184.103.146 at the above-mentioned dates and
times. On Tuesday, January 18, 2017, Detective Wahl received a
response from Windstream Communications Inc. via fax”, which
identifies the subscriber as Luis E. Soto, 43 East Walnut Street,
Ephrata, Pennsylvania. Said information provided sufficient
identification and corroboration of the residence and identity of
the owner of the internet service thereof.
Moreover, the affidavit in support of the search warrant did
specifically establish the likelihood that a criminal offense had
occurred in paragraph 29 of the search warrant. The search
warrant lists the downloaded files and states that “[t]he above
files were mostly of teenage girls in a shower or bath naked and
were ‘LS Models’. The rest of the images your Affiant would label
as erotica. There were additional partial downloads that were not
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included in the above list where your Affiant could identify Child
Pornography.”
Trial Court Opinion, 7/10/2018, at 15-16 (record citations omitted).
We agree with the trial court’s conclusion that the magistrate who
approved the warrant “had a substantial basis for concluding probable cause
existed” to conduct a search of Soto’s home. Leed, supra, 186 A.3d at 413.
As recited above, probable cause exists when, based on the totality of the
circumstances, “there is a fair probability that contraband or evidence of a
crime will be found in a particular place.” Jacoby, supra, at 1082. Here, the
probable cause affidavit set forth sufficient facts for the magistrate to conclude
there was a “fair probability” child pornography would be found on an
electronic device at Soto’s home. Despite Soto’s protestations, the affidavit
establishes the existence of an ongoing crime. Although the affiant’s
description of the pornographic images could have been more detailed, 5 the
affiant explicitly categorized the images of “teenage girls in a shower or bath
naked” as “child pornography as defined by PA C.S. Title 18, Crimes Code,
Section 6312, Sexual Abuse of Children.”6 Affidavit of Probable Cause,
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5 Soto’s claim that a “teenager” could include a person over the age of 18, is
more appropriately a sufficiency of the evidence argument for the jury. We
find the affiant’s description of the images as naked teenagers, coupled with
his specific categorization of the images as child pornography as described in
the statute, was sufficient for the magistrate to determine “there is a fair
probability that … evidence of a crime” would be found at Soto’s home.
Jacoby, supra, 170 A.3d at 1082.
6Soto insists the affiant’s description of the images as “child pornography”
was insufficient under Rule of Criminal Procedure 206(6), which requires the
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1/30/2017, at ¶ 29. Furthermore, the fact that the affiant failed to provide
further explanation regarding the partial downloads is irrelevant since he listed
29 downloads that contained images of child pornography.
Moreover, we conclude the affidavit provided sufficient facts for the
magistrate to conclude the files were shared from a device located at Soto’s
home. In paragraph 13, the affiant explained that every device connected to
the internet is assigned a “unique” IP number. Affidavit of Probable Cause,
1/30/2017, at ¶ 13. After uncovering the unique IP address which “shared”
the images of child pornography, Detective Wahl was able to identify the cable
company owner of that IP number, and via court order, identify the subscriber
of that IP address, which was Soto. Affidavit of Probable Cause, 1/30/2017,
at ¶¶ 32-35. Based upon the documented conduct of collectors of child
pornography,7 which includes maintaining their collections for prolonged
periods of time, the affiant provided sufficient probable cause for the
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affidavit to “set forth specifically the facts and circumstances which form the
basis of the affiant’s conclusion that there is probable cause[.]” Pa.R.Crim.P.
206(6). Further, he cites a 1961 United States Supreme Court decision for
the proposition that a magistrate cannot rely solely on an officer’s judgment
that an image constitutes child pornography. See Soto’s Brief at 28, citing
Marcus v. Search Warrants, 367 U.S. 717 (1961). However, the Marcus
case is clearly distinguishable. That case involved search warrants issued
solely on a police officer’s opinion, absent any description, that certain
magazines sold by the defendant distributors were “obscene … publications.”
Id. at 722. The determination that an image is obscene is much more
subjective than the determination that an image constitutes child pornography
as specified in Section 6312.
7 See Affidavit of Probable Cause, 1/30/2017, at ¶ 39.
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magistrate to conclude evidence of a violation of Section 6312 would be
located on an electronic device at Soto’s home.
Soto also challenges the search warrant as overbroad. See Soto’s Brief
at 32. He maintains “there exists no reasonable or constitutionally excusable
nexus between the items listed in paragraph thirty-three of the affidavit, and
the exhaustive list of items authorized to be seized[,]” which included adult
pornography and “the body of any person.” Id. at 33 (emphasis removed).
Moreover, Soto contends “[a]ny unreasonable discrepancy between the items
for which there was probable cause and the items to be seized, reveals that
the description was not as specific as was reasonably possible[.]” Id.
The Pennsylvania Constitution guarantees its citizens “no warrant to
search any place or seize any person or things shall issue without describing
them as nearly as may be[.]”8 PA. CONST., Art. 1, § 8. Accordingly, this Court
has imposed a particularity requirement in search warrant cases.
Thus, “a warrant must name or describe with particularity the
property to be seized and the person or place to be
searched.” Commonwealth v. Orie, 88 A.3d 983, 1002
(Pa.Super. 2014) (quoting Commonwealth v. Rivera, 816 A.2d
282, 290 (Pa.Super. 2003)). “The particularity requirement
prohibits a warrant that is not particular enough and a warrant
that is overbroad,” which are separate, but related,
issues. Id. (quoting Rivera, 816 A.2d at 290). A warrant lacks
sufficient particularity if it “authorizes a search in terms so
ambiguous as to allow the executing officers to pick and choose
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8 The language in the Pennsylvania Constitution, which requires the warrant
“describe the items as specifically as is reasonably possible,” is more
restrictive than that in the United States Constitution. See Commonwealth
v. Green, 204 A.3d 469, 481 n.2 (Pa. Super. 2019).
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among an individual’s possessions to find which items to
seize.” Id. (quoting Rivera, 816 A.2d at 290). A warrant is
unconstitutionally overbroad if it “authorizes in clear or specific
terms the seizure of an entire set of items, or documents, many
of which will prove unrelated to the crime under
investigation.” Id. at 1002-03 (quoting Rivera, 816 A.2d at
290).
Commonwealth v. Green, 204 A.3d 469, 480–481 (Pa. Super. 2019).
With respect to the warrant application at issue, there is no dispute the
list of items subject to seizure in Paragraphs 1-6 is extensive. See Application
for Search Warrant, 1/30/2017, at ¶¶ 1-6. Nevertheless, the trial court
opined:
In today’s modern electronic world, in cases such as the matter at
bar, the police need list every device that could be used to access
the internet. The seizure of [Soto’s] cellular telephone was clearly
covered in the list included in paragraph two. The court
specifically finds that, in this matter, the law enforcement officials
were not seeking to engage in any general rummaging; rather,
they were merely setting forth the necessary exhaustive list of
electronic devices capable of connecting to the internet for illicit
purposes.
Trial Court Opinion, 7/10/2018, at 17. We agree.
While the warrant permits the seizure of numerous electronic devices,
and documentation/records required to access those devices, the application
specifically incorporates by reference the probable cause affidavit, which
details the affiant’s basis for believing child pornography would be found on
one or more of those devices. See Application for Search Warrant, 1/30/2017,
at ¶ 2 (“The attached Affidavit of Probable Cause is incorporated by reference
in its entirety.”). Furthermore, a common-sense reading of the application
leads to the conclusion that the police were searching only for evidence
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relating to the possession or dissemination of child pornography.9 Moreover,
although the warrant sought permission to search/seize “the body of any
person” listed, that request was necessary “due to the size and portability of
many of today’s media storage devices … [which are] usually carried on the
body of a person.” Application for Search Warrant, 1/20/2017, at ¶ 6.
Accordingly, we do not find the warrant was overbroad, and Soto is entitled
to no relief with respect to either of his challenges to the search warrant.
Next, Soto contends the trial court erred in denying his motion to
suppress the statements he made both at his residence and at the police
station on the day the warrant was executed because he was subject to a
custodial interrogation without first being advised of Miranda warnings.10
See Soto’s Brief at 34.
Miranda warnings are required only when a defendant is subject to a
custodial interrogation by a police officer. See Commonwealth v. Heggins,
809 A.2d 908, 914 (Pa. Super. 2002) (“In order to trigger the safeguards
of Miranda, there must be both custody and interrogation”), appeal denied,
827 A.2d 430 (Pa. 2003). Our Supreme Court has explained:
“The standard for determining whether police have initiated a
custodial interrogation or an arrest is an objective one, with due
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9Indeed, there is no accusation that the police seized any documents or data
unrelated to the allegations at issue.
10We note Soto also claims his statements should be suppressed because they
were obtained as a result of an illegal search based upon a defective warrant.
See Soto’s Brief at 34. However, as we have found, supra, that Soto’s
challenge to his search warrant is meritless, this claim is now moot.
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consideration given to the reasonable impression conveyed to the
person interrogated rather than the strictly subjective view of the
troopers or the person being seized.” … A person is in custody
when he is physically denied his freedom of action in any
significant way or is placed in a situation in which he reasonably
believes that his freedom of action or movement is restricted by
the interrogation.
Commonwealth v. Yandamuri, 159 A.3d 503, 517-518 (Pa. 2017) (internal
citations omitted). When determining whether a person is in custody for
Miranda purposes,
[t]he court must consider the totality of circumstances, including
factors such as “the basis for the detention; the duration; the
location; whether the suspect was transferred against his will, how
far, and why; whether restraints were used; the show, threat or
use of force; and the methods of investigation used to confirm or
dispel suspicions.”
Commonwealth v. Cruz, 71 A.3d 998, 1004 (Pa. Super. 2013) (citation
omitted), appeal denied, 81 A.3d 75 (Pa. 2013). “Further, an ‘interrogation’
occurs when the police ‘should know that their words or actions are reasonably
likely to elicit an incriminating response from the suspect.’” Commonwealth
v. Clinton, 905 A.2d 1026, 1032 (Pa. Super. 2006) (quotation omitted),
appeal denied, 934 A.2d 71 (Pa. 2007).
Here, Soto seeks to suppress statements he made both at his home and
at the police station. He insists he was in custody when 12 police officers
entered his home to execute the warrant, and informed both him and his
family that the warrant authorized the police to seize the body of any person
present. See Soto’s Brief at 35. He maintains, “[f]rom this point forward, it
would have been reasonable for him to believe that his freedom of action or
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movement was restricted[.]” Id. at 36. Moreover, Soto argues that after he
indicated he had the BitTorrent app on his phone, the officers “isolated” him
from his family. Id. He was subsequently “escorted” to the police station in
an unmarked vehicle, and led to an interview room with a closed door. Id.
Relying upon United States v. Craighead, 539 F.3d 073 (9th Cir. 2008), Soto
contends he made his first inculpatory admission in the “police dominated
atmosphere” of his own home, before being separated from his family and
escorted by police to his front porch and later to the police station. See Soto’s
Brief at 37-38. He insists that although he was told he was free to leave,
“when considered within the context of the scene as a whole, the ‘free-to-
leave’ recitation did not render the questioning of Mr. Soto noncustodial.” Id.
at 38.
Preliminarily, we note that the only case upon which Soto relies,
Craighead, is a decision of the Ninth Circuit Court of Appeals. It is not binding
on this Court, and has never been cited by any court of this Commonwealth.
See Commonwealth v. Walker, 139 A.3d 225, 230 (Pa. Super. 2016)
(“Absent a United States Supreme Court pronouncement, decisions of federal
courts are not binding on state courts”) (citation omitted), appeal denied, 158
A.3d 1243 (Pa. 2016).
Nevertheless, after considering the factors set forth in Cruz, supra, we
have no hesitation in concluding Soto was not “in custody” for Miranda
purposes when he made potentially inculpatory statements. The first
“statement” he made, i.e., that he had the BitTorrent app on his phone, was
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during the execution of the search warrant at his home. Although 12 police
officers were present, Detective Yarnell testified that his tone was
conversational when he informed the residents of the warrant. See N.T.,
9/22/2017, at 30, 34-35, 52. Furthermore, shortly after they arrived,
Detective Wahl asked the residents if they were familiar with BitTorrent. See
id. at 82. When Soto indicated he had the app on his phone, Detective Goss
and Quinn asked him to speak with them on the front porch because of the
sensitive nature of the subject matter. See id. at 50-52. Again, their tone
was conversational and non-threatening. When they asked Soto if he would
go to the station for an interview, he agreed without hesitation. Furthermore,
the detectives gave him the option to drive himself, but he chose to leave his
own car at home. Soto was never handcuffed during the 45 minute interview,
was told he was free to leave, and was, in fact, permitted to leave when he
asked to do so. See id. at 53, 57-58, 61, 66-68, 71, 74-79.
Although we acknowledge the presence of 12 officers may have been
excessive, there was no testimony that the officers acted in any intimidating
manner; rather, they showed restraint and respect when they asked to speak
with Soto on the porch due to the sensitive nature of the subject matter, and
provided him with the option to drive himself to the police station.
Accordingly, based upon the testimony at the suppression hearing, we find no
basis to overturn the trial court’s determination that Soto “was not in custody
at the time of his interrogation by Detectives Goss and Quinn.” Trial Court
Opinion, 7/10/2018, at 20. See Commonwealth v. McCoy, 154 A.3d 813,
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816 (Pa. Super. 2017) (when considering a motion to suppress, “it is within
the lower court's province to pass on the credibility of witnesses and determine
the weight to be given to their testimony”) (citation omitted).
In his third issue, Soto argues the trial court erred in denying his pretrial
motion for nominal bail pursuant to Pa.R.Crim.P. 600(B).11 See Soto’s Brief
at 39-43. We find this claim is moot because Soto is no longer in pretrial
detention, and in fact, “has been convicted and is incarcerated.” See
Commonwealth v. Samuel, 102 A.3d 1001, 1006 (Pa. Super. 2014), appeal
denied, 134 A.3d 56 (Pa. 2016). Soto’s argument consists solely of a
straightforward calculation of time delays attributable to both the
Commonwealth and the defense. 12 Furthermore, he received credit against
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11 Rule 600(B) mandates, inter alia, “[e]xcept in cases in which the defendant
is not entitled to release on bail as provided by law, no defendant shall be held
in pretrial incarceration in excess of … 180 days from the date on which the
complaint is filed[.]” Pa.R.Crim.P. 600(B)(1). The Rule explains that “only
periods of delay caused by the defendant shall be excluded for the
computation of the length of time of any pretrial incarceration,” and provides
that a defendant who is held beyond the mandated period may file a motion
requesting his immediate release on nominal bail. Pa.R.Crim.P. 600(C)(2),
(D)(2).
12 Compare Commonwealth v. Sloan, 907 A.2d 460, 465 (Pa. 2006)
(addressing moot Rule 600 issue because the “appeal presents an issue of
public importance that this Court has yet to address, regarding whether an
accused who is incarcerated for more than 180 days is entitled to
unconditional release pursuant to Rule 600[].”); Commonwealth v. Dixon,
907 A.2d 468, 469-470 (Pa. 2006) (addressing moot Rule 600 issue to
determine whether an interlocutory appeal by the Commonwealth, which
extends the 365-day time limit for trial, also extends the 180-day limit for
pretrial incarceration).
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his sentence for all time-served in pretrial detention. See N.T., 4/13/2018,
at 28. Accordingly, we decline to address this claim on appeal.
In his next issue, Soto challenges the trial court’s denial of his oral
motion in limine to preclude the Commonwealth from presenting evidence
regarding 176 images and one video depicting child pornography recovered
from the internal hard drive of his cell phone. By way of background, in the
criminal complaint and accompanying affidavit of probable cause, the
Commonwealth averred that it recovered 678 images and nine videos
depicting child pornography from the SD memory card in Soto’s cell phone.
See Criminal Complaint, 2/2/2017, at Offenses 1-3; Affidavit of Probable
Cause, 2/2/2017, at ¶ 5. In the criminal information, however, the
Commonwealth charged Soto more generally, asserting he possessed
“multiple digital images” and “multiple digital videos” depicting children under
the age of 18 “engaged in a sex act or the simulation of a sex act on his
Samsung Galaxy Note 4 cellular phone.” Criminal Information, 5/16/2017, at
Counts 1-3. However, at each count, the Commonwealth provided notice that
it was seeking certain sentencing enhancements: (1) at Count 1, (a) an
enhancement of 18 months’ based upon Soto’s possession of 678 digital
images, and (b) an enhanced offense gravity score (“OGS”) of 7, based on his
possession of 536 images of children under the age of 13; (2) at Count 2, an
additional one point added to the OGS based on six videos; and (3) at Count
3, an enhanced OGS of 7 based on three videos depicting children under the
age of 13. See Criminal Information, 5/16/2007.
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During a pretrial hearing conducted on February 9, 2017,13 Soto’s
counsel objected to the introduction of the 176 images and one video
extracted from the cell phone’s internal hard drive, but not from the SD card.
See N.T., 2/9/2018, at 32. This issue was raised during a discussion
concerning a discovery motion Soto filed on February 7, 2018, seeking a copy
of the forensic report. Counsel stated that although she reviewed the original
678 images and nine videos recovered from the SD card, she was never
provided with the opportunity to review the additional images and video
extracted from the cell phone’s internal hard drive, or the forensic extraction
report concerning those images.14 See id. While counsel acknowledged she
knew those additional images and video were recovered based upon a four-
page summary forensic report she received in July of 2017, she stated she did
not review the images, or the accompanying detailed report relating to the
extraction, because she “was told [by the prosecutor that Soto] wasn’t being
charged with” them, an allegation the Commonwealth adamantly denied. Id.
at 48. See also N.T., 2/9/2018, at 45; 2/12/2018, at 102. The
____________________________________________
13February 9th was a Friday. Trial was scheduled to begin on Monday, February
12th.
14 The Commonwealth explained that it cannot provide copies of forensic
reports containing images of child pornography to defense counsel: “I do
believe it is against the law for the Commonwealth to disseminate these
images to anyone other than the individual who is investigating the crime and
the prosecutor who is prosecuting the crime.” N.T., 2/9/2018, at 27-28.
Rather, the Commonwealth must provide counsel with the opportunity to
review the document at its office.
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Commonwealth insisted the criminal information provided sufficient notice
that it intended to prosecute Soto for all the images recovered from his cell
phone because it referred to multiple images; “[w]e intentionally do not put a
number in the to wit [paragraph … t]hat way the jury can determine how many
of the [] 854 images are child pornography there.” Id. at 50. The court
directed the Commonwealth to make the additional forensic report available
to Soto’s counsel over the weekend.
On the first day of trial, following voir dire, Soto made an oral motion in
limine to preclude reference to any of the images and video recovered from
his cell phone’s internal hard drive. See N.T., 2/12/2018, at 88. He argued
he was “never on notice” that he would be prosecuted for those items, and he
was prejudiced because the forensic report involves “different software” and
“a whole different set of expert knowledge.” Id. at 91-92. The trial court
denied the motion, concluding that the criminal information, while perhaps
“confusing,” was sufficient to inform Soto of the charges. Id. at 92.
Furthermore, the court noted counsel was provided with discovery, which
referenced the images recovered from the internal hard drive, months before
trial and could have filed a bill of particulars, but did not do so. See id. at 92,
99.
On appeal, Soto insists “the criminal information failed to provide
sufficient notice that [he] was being charged with anything other than the
originally charged 678 images and nine videos recovered from the SD card.”
Soto’s Brief at 44-45 (footnote omitted). He contends that because the
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language in the enhancement notices referenced the exact number of images
and videos recovered from the SD card, it was reasonable for him to assume
he was only being charged with those images and videos. With regard to the
court’s suggestion that he could have filed a bill of particulars, Soto maintains
he “never claimed that the information was deficient for lack of
particularity[;]” rather, his complaint is that he was charged only with the
images and videos recovered from the SD card. Id. at 47. Moreover, Soto
argues he was prejudiced when the Commonwealth was permitted to present
evidence concerning the additional images and video because “they changed
the factual scenario supporting the original charges, and rendered defenses
that may have been raised against the contents of the SD card ineffective.” 15
Id. at 49.
“Initially, we note that, ‘[w]hen reviewing the denial of a motion in
limine, we apply an evidentiary abuse of discretion standard of review.’”
Commonwealth v. Hitcho, 123 A.3d 731, 747 (Pa. 2015) (citation omitted).
Here, Soto’s argument is based on his assertion that the Criminal Information
____________________________________________
15 Soto maintains that because the images and videos on the SD card were
recovered deleted files, they contained no “attendant data” regarding how
they got there and when or if they were ever viewed. Soto’s Brief at 51. “In
other words, the defense of mistaken downloads and unknowing possession
was available as to the contents of the SD card.” Id. However, Soto claims
these defenses were “rendered ineffective” when the Commonwealth
presented evidence that additional images were recovered from “various
locations on the phone” bearing dates just weeks before the filing of the
criminal complaint. Id. at 52. As will be discussed infra, we need not address
Soto’s prejudice argument.
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did not provide sufficient notice that he would be prosecuted for possessing
the 176 images and one video recovered from the internal hard drive of his
cell phone.
The purpose of an Information or an Indictment is to provide the
accused with sufficient notice to prepare a defense, and to ensure
that he will not be tried twice for the same act. An Indictment or
an Information is sufficient if it sets forth the elements of the
offense intended to be charged with sufficient detail that the
defendant is apprised of what he must be prepared to meet, and
may plead double jeopardy in a future prosecution based on the
same set of events.
Commonwealth v. Alston, 651 A.2d 1092, 1095 (Pa. 1994).
The trial court addressed this claim in its opinion as follows:
[I]t must be recognized that the Criminal Information filed in this
matter was in full compliance with the requirements of Rule 560
of the Pennsylvania Rules of Criminal Procedure, as applicable at
the time of the current offenses. Stated another way, the Criminal
Information filed in this matter contained all required averments
as noted above. Accordingly, it is clear, that in addition to
complying with all other requirements imposed by Rule 560 of the
Pennsylvania Rules of Criminal Procedure, the Criminal
Information sufficiently provided a plain and concise statement of
the essential elements of the offenses substantially the same as
cognate to the offenses alleged in the complaint.
The court is cognizant that [Soto’s] claims are currently
based upon an assertion of lack of proper notice or purported
confusion regarding the specific images and videos upon which
the Commonwealth would be proceeding at trial. Specifically,
defense counsel advanced an argument that she assumed that the
Commonwealth was only seeking prosecution of [Soto] on the 678
digital images and 9 video files of child pornography contained on
the SD memory case. Defense counsel asserted that she was
unaware that he Commonwealth sought prosecution relative to
the 176 digital files and 1 video file of child pornography contained
on the internal hard drive of [Soto’s] cellular telephone. While
recognizing, with a certain degree of disapproval, the imprecise
language utilized relative to the notice provisions contained in the
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Criminal Information relative to the requested sexual abuse of
children enhancements under the applicable Sentencing
Guidelines, the court does not find said imprecision to be fatal in
nature or that such imprecision caused any undue surprise to
[Soto] or his counsel.
Initially, as reflected above, it must be recognized that the
Criminal Information clearly and precisely stated that [Soto] was
charged with the possession of multiple images and videos of
child pornography on his Samsung Galaxy Note 4 cellular
telephone, without specific qualification as to the number of
images and videos.
Further, a comprehensive review of the charging documents
and procedural history of the current matter demonstrates that,
through the discovery process, [Soto] was properly provided
notice of all the images and videos depicting child pornography
which the Commonwealth alleged he possessed on both the SD
memory card and internal hard drive of his cellular telephone. It
is specifically noted that defense counsel acknowledged that she
had received discovery materials from the attorney for the
Commonwealth on May 1, 2017. Contained within said discovery
materials were redacted reports prepared by Sergeant John Duby
of the Lancaster County District Attorney’s Office, who performed
the forensic analysis on both [Soto’s] cellular telephone and the
enclosed SD memory card. Although the redacted reports did not
contain the images and video depictions of child pornography,
they did explicitly reference that SD storage card contained 678
digital images and 9 video files of child pornography and the
internal hard drive of the cellular telephone contained 176 digital
images and 1 video file of child pornography. Defense counsel
acknowledged that she had the opportunity [to review] the images
of child pornography at the forensic facility operated by the Office
of the District Attorney in July 2017 and that nothing prevented
her from further viewing of the images and unredacted reports.
Although the Commonwealth, in no way, restricted counsel’s
ability to further view the images, counsel claimed an
understanding that [Soto] was only being charged with the images
and video depictions contained on the memory card, although
Sergeant Duby’s report clearly addressed all images and video
depictions contained on both the memory card and internal hard
drive of [Soto’s] cellular telephone. At the conclusion of the pre-
trial hearing held on February 9, 2018, the Friday before the
scheduled commencement of trial, the court directed that counsel
meet on the weekend prior to trial to provide defense counsel with
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the opportunity to view the 176 digital images and 1 video file
contained on the internal hard drive of the cellular telephone. It
is specifically noted that counsel for [Soto] never sought to
continue trial in the instant matter.
To the extent that [Soto] claims uncertainty as to the nature
of the instant prosecution, [Soto], under the applicable rules, was
free to file a request for a bill of particulars to alleviate any
purported surprise. [Soto] failed to do so. In response to the
court’s inquiries in this regard, defense counsel initially attempted
to explain any failure to request a bill of particulars by noting that
the Criminal Information in this matter was filed on May 16, 2017,
which was subsequent to [Soto’s] formal arraignment in the
Lancaster County Court of Common Pleas on April 13, 2017.
Nothing prevented [Soto] from making such request immediately
following the filing of the Criminal Information and asserting that
any delay in such request was precipitated by the delay in the
filing of the Criminal Information. Further, defense counsel
attempted to justify [Soto’s] failure to file any request for a bill of
particulars by stating “who files a bill of particulars”. In all candor,
the Commonwealth simply cannot be deemed as responsible for
any failure of [Soto] or his counsel to avail themselves of the
proper remedies as provided by the applicable Rules of Criminal
Procedure.
Based upon the totality of this court’s review of the charging
documents and the procedural history of this matter as addressed
above, the court finds [Soto’s] claims in this regard to be wholly
lacking in credibility. This court finds [Soto’s] claims in this regard
to be fabricated as the result of either strategic gamesmanship or
lack of due diligence by defense counsel, rather than emanating
from any genuine lack of notice or confusion. In either such
scenario, the Commonwealth cannot be held to bear the heavy
burden of the requested preclusion of images and video depictions
which the Commonwealth had properly disclosed to defense
counsel on May 1, 2017, more than ten months prior to trial.
Accordingly, [Soto] has failed to credibly demonstrate any
resulting prejudice and his claim in this regard lacks merit.14, 15
__________
14 Although not relevant to disposition of [Soto’s] current claim, it
is noted that the Commonwealth specifically chose to consolidate
multiple images or video depictions in certain charged counts,
rather than seeking an individual count relative to each image or
video depiction. Accordingly, the Commonwealth would not need
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[to] seek any amendment to the Criminal Information relative to
any change regarding the quantity of images or video depictions.
15 While not directly applicable to the disposition of [Soto’s]
current claim, this court notes that, pursuant to Rule 564 of the
Pennsylvania Rules of Criminal Procedure and the related []
authority of our appellate courts, if the Commonwealth would
have sought to amend the Criminal Information prior to the
commencement of trial in the instant matter, any such attempted
amendment would likely have been deemed appropriate given the
attendant facts in this matter. The court addressed such rationale
on the record at trial. (N.T.T., pgs. 97-99). See, Commonwealth
v. Sinclair, 897 A.2d 1218 (Pa. Super. 2006); Commonwealth
v. Grekis, 601 A.2d 1284 (Pa. Super. 1992).
Trial Court Opinion, 7/10/2018, at 29-33 (emphasis in original; record
citations and some footnotes omitted).
In summary, the trial court concluded the criminal information and
discovery materials turned over by the Commonwealth provided Soto with
sufficient notice of the charges he faced so that he could fully prepare for trial.
We find no abuse of discretion in the trial court’s common-sense analysis of
this claim. See Hitcho, supra. Furthermore, because we agree the charges
filed included the 176 images and one video recovered from the internal hard
drive of Soto’s cell phone, we need not address his argument concerning
prejudice. Accordingly, Soto is entitled to no relief on this claim.
Soto next contends the trial court erred or abused its discretion in
denying his pretrial written motion in limine to preclude the entire latter
portion of his interview with police. See Soto’s Brief at 53. Again, we review
the court’s denial of a motion in limine for an abuse of discretion. See Hitcho,
supra, 123 A.3d at 747.
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On February 7, 2018, Soto filed a motion in limine seeking to preclude,
inter alia, certain portions of his recorded police statement, including hearsay
statements made by the interrogating officers, and Soto’s invocation of his
right to counsel. See Motion in Limine, 2/7/2018, at ¶¶ 29-34. At the pretrial
hearing, Soto requested the court “not permit the jury to hear anything after
minute 21 of the recorded interview[.]” N.T., 2/9/2018, at 4. After Soto
detailed his objections, the Commonwealth agreed that some of the
statements during the interview needed to be redacted for trial. See id. at
10. It created a redacted recording over the weekend. Thereafter, on the
first day of trial the following Monday, Soto again requested the court preclude
the Commonwealth from using any part of the latter portion of the interview,
stating he had “multiple objections” after reviewing the redacted recording.
N.T., 2/12/2018, at 71. The trial court considered each specific objection, but
ultimately concluded Soto was entitled to no relief.
On appeal, Soto repeats his general argument that “[t]he entirety of the
latter portion of the interview should have been deemed inadmissible” because
it lacked probative value and, particularly after the redaction, was unfairly
prejudicial. Soto’s Brief at 58. He also specifically objects to the following:
(1) a statement by one of the detectives that the officers searching the phone
told him there were “multiple searches” and “this wasn’t a one-time accidental
download … that you’re (Soto) actually physically searching for this stuff[,]”
because the statement relays hearsay and implies the detective found Soto to
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be dishonest;16 (2) any statements made after Soto said “I don’t know if I
should answer any questions without a lawyer” because he invoked his right
to counsel;17 (3) the detective’s statement that “there are people that actually
act on these impulses[,]” because it was unfairly prejudicial;18 and (4) fifteen
seconds of silence after the detective asked Soto, “so you pretty much just
contain it to your cell phone?” because this constituted a violation of his right
to remain silent.19 We will consider Soto’s claims seriatim.
With regard to the detective’s statement that “this wasn’t a one-time
accidental download[,]”20 Soto objects on two bases. First, he asserts the
statement constitutes hearsay because the detective was relaying information
he purportedly learned from other officers. See Soto’s Brief at 54. Second,
Soto insists the detective’s statement inferred “Soto had not been honest
____________________________________________
16 Soto’s Brief at 53-54, 55.
17 Id. at 55.
18 Id. at 56.
19 Id.
20 See Soto’s Brief at 53. We note the certified record includes both the
original and redacted audio recordings of Soto’s police interview. However,
the printed version of the redacted statement that appears in Soto’s
reproduced record is not in the certified record. “We have repeatedly held
that our review is limited to those facts which are contained in the certified
record” and a document that is not included in the certified record “does not
exist for purposes of our review.” Commonwealth v. O'Black, 897 A.2d
1234, 1240 (Pa. Super. 2006).
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during the first portion of the interview” and therefore, “constitute[d]
inadmissible lay opinion.” Id. at 55.
In Commonwealth v. Kitchen, 730 A.2d 513 (Pa. Super. 1999), a
panel of this Court considered whether a trial court erred in ordering the
Commonwealth to redact certain parts of the defendant’s statement to police.
Relevant to the claim herein, the panel opined:
The trial court excluded any police comments that informed
[the defendant] that there were witnesses who had enlightened
them regarding [the defendant’s] connection to the murder.
Again, we fail to see why such comments should be excluded from
the tapes since the criminal complaint and attached affidavit of
probable cause reveal the identity of these witnesses and the
Commonwealth avers that they will testify at [the defendant’s]
trial. The comments were not prejudicial to [the defendant], were
not inflammatory and do not constitute hearsay evidence since
the witnesses will allegedly testify at [the defendant’s] trial and
can be cross-examined by [defense] counsel. Hence, any
comments regarding witnesses who will connect [the defendant]
to the murder can be included in the videotapes displayed to the
jury.
****
The trial court also excluded several instances where the
police, either directly or indirectly, accused [the defendant] of
lying. We agree with Judge Hogan that these comments must be
redacted from the videotapes. When the troopers stated to [the
defendant], “You're lying”, or “We know that you're lying” or
phrases to that effect, their statements were akin to a prosecutor
offering his or her opinion of the truth or falsity of the evidence
presented by a criminal defendant, and such opinions are
inadmissible at trial. Commonwealth v. Henry, 550 Pa. 346,
706 A.2d 313 (1997). The troopers’ statements could also be
analogized to a prosecutor’s personal opinion, either in argument
or via witnesses from the stand, as to the guilt or innocence of a
criminal defendant, which is inadmissible at
trial. Commonwealth v. Peterkin, 538 Pa. 455, 649 A.2d 121- 28 -
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(1994), cert. denied, 515 U.S. 1137, 115 S. Ct. 2569, 132 L. Ed. 2d
821 (1995).
Id. at 521.
Regarding Soto’s hearsay challenge, the trial court found Detective
Quinn’s statement did not constitute inadmissible hearsay under Kitchen
because he simply relayed what another officer told him about the
investigation, and that officer later testified at trial. See Trial Court Opinion,
7/10/2018, at 42-43. See also N.T., 2/9/2018, at 17; N.T., 2/12/2018, at
72.21 Furthermore, the court did direct the Commonwealth to redact certain
comments by Detective Quinn, which expressed his opinion that Soto was not
being truthful. See N.T., 2/9/2018, at 17-18. However, we agree Detective
Quinn’s statement that “this wasn’t a one-time download” did not constitute
a comment on Soto’s credibility. Rather, as stated above, the detective was
simply relaying what he had learned from another officer. See N.T.,
2/12/2018, at 72.
With regard to Soto’s purported invocation of his right to counsel, Soto’s
argument on appeal differs from the claim he preserved in the trial court. On
appeal, Soto argues he first invoked his right to counsel during the interview
following a short break after minute 21. See Soto’s Brief at 54. When the
detectives returned, they began questioning him specifically about his internet
searches for child pornography, Soto stated: “I don’t know if I should answer
____________________________________________
21At the pretrial hearing, the Commonwealth explained the detective was “just
relaying what Detective Wahl has told him on the phone. And Detective Wahl
will testify to what he was telling the individuals at the interview, what was
happening at the search warrant[.]” N.T., 2/9/2018, at 16.
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any questions without a lawyer.” Interview with Luis Soto (unredacted),
1/31/2017, at 33:44. Detective Quinn responded, “Okay… well that’s a
decision you have to make … do you have a lawyer in mind?” to which Soto
replied, “No.” Id. at 33:49-33:53. At that point the interview continued. He
now argues his statement constituted a “clear and unequivocal invocation” of
his right to counsel, and the interview should have stopped at that time.
Soto’s Brief at 55.
However, in his motion in limine, Soto requested only that the court
“preclude from evidence any and all statements by him invoking his Fifth
Amendment rights.” Motion in Limine, 2/7/2018, at unnumbered 6. During
argument on the motion, the Commonwealth agreed to redact both the
statement above, in which Soto questioned whether he might need a lawyer,
as well as a later statement he made when he actually asked for a lawyer and
the interview ceased. See N.T., 9/2/2018, at 10-11. When counsel objected
to the redacted interview on the morning of trial, she did not argue that Soto
had invoked his right to counsel when he said, “I don’t know if I should answer
any questions without a lawyer[,]”22 and cite that alleged invocation as a basis
to preclude the remaining statement. See N.T., 2/12/2018, at 70-87.
Furthermore, Soto’s very general Pa.R.A.P. 1925(b) concise statement framed
this issue as follows: “The Trial Court erred in denying [] Soto’s Motion in
Limine, permitting the Commonwealth to present prejudicial and nonprobative
____________________________________________
22 Interview with Luis Soto (unredacted), 1/31/2017, at 33:44.
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portions of [] Soto’s recorded interview at trial.” Statement of Errors
Complained of on Appeal, 6/15/2018, at ¶ 5. Accordingly, we could find the
issue as framed in Soto’s brief waived.
Nevertheless, we note that the trial court found Soto’s statement “did
not constitute a clear and unequivocal invocation of his rights against self-
incrimination and to the assistance of counsel[,]” such that the interview
should have ceased. Trial Court Opinion, 7/10/2018, at 37. We agree.
To trigger Fifth Amendment protections, “a defendant’s request for
counsel must be sufficiently clear ‘that a reasonable police officer would
understand the statement to be a request for an attorney.’” Commonwealth
v. Champney, 161 A.3d 265, 272 (Pa. Super. 2017), appeal denied, 173 A.3d
268 (Pa. 2017).
The inquiry into whether or not a suspect has invoked the right to
counsel is an objective one. The [United States Supreme] Court
explained that a suspect “must articulate his desire to have
counsel present sufficiently clearly that a reasonable police
officer in the circumstances would understand the
statement be a request for an attorney.” However, if the
statement is “ambiguous or equivocal in that a reasonable officer
in light of the circumstances would have understood only that the
suspect might be invoking the right to counsel,” police are not
required to cease questioning.
Id. at 273 (citations omitted and emphasis in original). Here, we agree with
the trial court’s determination that Soto’s statement - “I don’t know if I should
answer any questions without a lawyer” – was not a clear and unequivocal
request for counsel, and the remaining redacted portion of the interview could
be heard by the jury. Accordingly, no relief is warranted.
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Soto also insists Detective Quinn’s statement, “there are people that
actually act out ... on these impulses,” should have been “excluded in light of
its danger of unfair prejudice.” Soto’s Brief at 56. The trial court addressed
this objection as follows:
It is noted that defense counsel was unable to articulate a concise
basis for such objection. Rather, counsel argued that said
comments were somehow a reference to [Soto’s] need for
counseling or a prejudicial remark as to his character. As aptly
noted by the attorney for the Cmmownealth, law enforcement
officers have long been permitted to use some trickery or deceit
in an effort to elicit inclupatory statements. This court finds that
such comment did not rise to the level of any opinion regarding
the veracity of [Soto] nor did it portray the character of [Soto] in
any negative manner. Rather, it is the firm belief of the court that
said comment was made by the detective in an effort to elicit a
response from [Soto]. As such, there is no resulting prejudicial
effect to [Soto].
Trial Court Opinion, 7/10/2018, at 48-49. Soto offers no basis for us to
conclude the trial court abused its discretion in this ruling.
Lastly, Soto argues his silence following Detective Quinn’s question, “so
you pretty much just contain it to your cell phone?” should have been
precluded as a tacit admission, violative of his right to remain silent. Soto’s
Brief at 56.
It is well-established that:
Evidence of a defendant’s silence in refusing to deny guilt after an
accusation of guilt has been made (often referred to as a tacit
admission) is generally not admissible where the silence occurred
while the defendant is in police custody because a contrary policy
would effectively vitiate a defendant’s constitutionally guaranteed
right against self-incrimination. However, this principal of not
allowing evidence of a tacit admission by the defendant does not
extend to instances where the defendant does not choose to
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remain silent but instead volunteers responses to police
questioning.
Commonwealth v. Hawkins, 701 A.2d 492, 509 (Pa. 1997) (citation
omitted), cert. denied, 523 U.S. 1083 (1998). Soto insists his 15 seconds of
silence should have been redacted because the silence was “ultimately broken
by Detective Goss.” Soto’s Brief at 56.
Our review of the redacted audio recording reveals no abuse of
discretion on the part of the trial court. In fact, contrary to Soto’s
characterization, his mumbled response of “yes” or “um” to Detective Quinn’s
question can be heard on the recording. Interview with Luis Soto
(unredacted), 1/31/2017, at 35:05-35:12; Interview with Luis Soto
(redacted), 2/14/2018, at 33:29-33:34.23 Accordingly, because Soto,
ultimately, did utter a response to Detective Quinn’s question, any silence
preceding the response is not excludable under Hawkins.
Soto also argues that, even after the redactions, the latter part of the
interview “lacked probative value” and “mislead (sic) the jury regarding the
actual verbal exchanges that occurred.” Soto’s Brief at 58. Indeed, he
maintains that because certain questions or comments were redacted, several
of his statements that were not redacted did not make sense. Accordingly,
he contends “the entirety of the latter portion of the interview” should have
____________________________________________
23We note that the printed version of the redacted statement contained in the
reproduced record does not include any response to this question.
Nevertheless, as we explained supra, the printed statement is not in the
certified record. See supra, n. 19. Furthermore, we would find the audio
recording itself controls.
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been excluded. Id. The trial court rejected this general argument, finding
“defense counsel was unable to specifically articulate any resulting prejudice.”
Trial Court Opinion, 7/10/2018, at 48. Soto offers no basis upon which to find
the court abused its discretion in this ruling. Moreover, our review of the
redacted interview does not support Soto’s claim. See Hitcho, supra.
Accordingly, we conclude he is entitled to no relief.
In his final issue on appeal, Soto contends the trial court applied an
incorrect offense gravity score (“OGS”) in sentencing him on Count 2, which
involved his possession of multiple videos depicting children engaging in
indecent contact. See Soto’s Brief at 60. Specifically, he argues the court
erred in double counting the “indecent contact” which led to an enhanced OGS.
See id.
“A claim that the sentencing court used an incorrect OGS is a challenge
to the discretionary aspects of one’s sentence.” Commonwealth v.
Williams, 151 A.3d 621, 625 (Pa. Super. 2016)
It is well settled that a challenge to the discretionary aspects
of a sentence is a petition for permission to appeal, as the right to
pursue such a claim is not absolute. Commonwealth v.
Treadway, 104 A.3d 597, 599 (Pa. Super. 2014). Before this
Court may review the merits of a challenge to the discretionary
aspects of a sentence, we must engage in the following four-
pronged analysis:
[W]e conduct a four part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. 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
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from is not appropriate under the Sentencing Code, 42
Pa.C.S. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)
(citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006)).
Id. In the present case, Soto preserved this claim by raising it at his
sentencing hearing, filing a timely appeal, and including the requisite Pa.R.A.P.
2119(f) statement in his brief. See N.T., 4/13/2018, at 7-11; Soto’s Brief at
59. Furthermore, this Court has held that an allegation the trial court applied
an incorrect OGS raises a substantial question for our review. See
Commonwealth v. Archer, 722 A.2d 203, 210-211 (Pa. Super. 1998) (en
banc). Accordingly, we may address this issue on appeal.
Soto’s claim focuses on the enhanced OGS of 10 the court applied to
Count 2. In the Criminal Information, Soto was charged with possessing
“multiple digital videos depicting children under the age of 18 engaged in a
sex act or the simulation of a sex act which involved indecent contact[.]”
Information, 5/16/2019, at Count 2. Furthermore, the Commonwealth sought
an enhancement of one OGS point based upon “the six (6) indecent contact
of the digital videos he possessed.” Id. at Count 2, Enhancement Notice.
Under the sexual abuse of children statute, possession of child
pornography is generally graded as a third-degree felony. See 18 Pa.C.S. §
6312(d.1)(2)(i). However, the statue provides:
When a person commits an offense graded under paragraph (1)
or (2)(i) and indecent contact with the child as defined in [18
Pa.C.S.] 3101 (relating to definitions) is depicted, the grading of
the offense shall be one grade higher than the grade specified in
paragraph (1) or (2)(i).
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18 Pa.C.S. § 6312(d)(3). Accordingly, in the present case, Soto’s conviction
at Count 2 was properly graded as a felony of the second degree, after the
jury determined the videos depicted “indecent contact.” Verdict, 2/15/2018.
However, the Guidelines also provide for certain sentencing
enhancements to conviction of Section 6312. Pursuant to 204 Pa.Code §
303.10(e), an enhancement applies when the images possessed by the
defendant “portray[] … an act which would constitute a crime under … 18
Pa.C.S. Chapter 31 (relating to sexual offenses).” 204 Pa.Code §
303.10(e)(2)(iv). Under those circumstances, the court must consider an
OGS which is “one point higher than the assignments for 18 Pa.C.S. § 6312 …
listed in 303.15.” 204 Pa.Code § 303.9(l)(2). See also 204 Pa. Code §
303.15 (OGS of 9 for conviction of Section 6312(d), possession of child
pornography with indecent contact depicted).
At the sentencing hearing, Soto’s counsel objected to the guidelines
range provided by the Commonwealth for Count 2. She noted that pursuant
to Section 6312(d)(3), the Commonwealth increased the grade of the offense
to a felony of the second degree, and, therefore, started with an OGS of 9. 24
However, she argued that the Commonwealth then increased the OGS to 10
based upon application of the enhancement at Section 303.9(l)(2), which
resulted in a standard guidelines range of 22 to 36 months’ imprisonment.
Counsel insisted that in doing so, the Commonwealth “double count[ed] the
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24 Soto does not contest this grade increase.
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fact of the indecent contact and enhanc[ed] the punishment for a fact that
was an element of the offense itself.” N.T., 4/13/2018, at 8. The court
rejected this claim, but imposed on Count 2 a mitigated range term of 18 to
60 months’ imprisonment. See id. at 26.
Soto raises this same claim on appeal. He contends “it is generally
‘impermissible for a court to consider factors already included within the
sentencing guidelines as the sole reason or increasing or decreasing a
sentence.” Soto’s Brief at 61, quoting Commonwealth v. Simpson, 829
A.2d 334, 339 (Pa. Super. 2003). Comparing this enhancement to the deadly
weapon enhancement at Section 303.10(a)(3), he notes “sentencing courts
are specifically prohibited from applying the enhancement where the
‘possession of a deadly weapon is an element of the statutory definition.’”
Soto’s Brief at 61, quoting 204 Pa.Code § 303.10(a)(3)(ix). Accordingly, he
insists the court applied the incorrect sentencing guidelines, and he is entitled
to a resentencing hearing.
In addressing this issue, the trial court first explained that two different
sentencing enhancements were applicable to Soto’s conviction at Count 2.
See Trial Court Opinion, 7/10/2018, at 56-57. In addition to the “indecent
contact” enhancement detailed above, Section 303.10(e) also provides for a
sentencing enhancement based upon the number of images the defendant
possessed. See 204 Pa.Code 303.10(e)(1). Specifically, if the “offender
possessed more than 50 images,” Section 303.9(e)(1) requires the court to
“consider the sentencing recommendations described in § 303.9(l)(1).” Id.
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The subsection further details that “[e]ach video, video-clip, movie, or similar
visual depiction shall be considered to have 50 images.” Id. at (e)(1)(ii).
Under Section 303.9(l)(1), if the defendant possessed “more than 200 images
up to 500 images, 12 months are added” to both the lower limit and upper
limit of the standard range.25 204 Pa.Code § 303.9(l)(1). Subsection
303.9(l)(3) provides that when more than one aggravating circumstance
applies, “[t]he court shall consider the enhancement with the higher
sentencing recommendation.” Id. at § 303.9(l)(3).
Here, the court determined that both the images enhancement and
conduct enhancement applied to Count 2. See Trial Court Opinion,
7/10/2018, at 58. The court opined:
Based upon the factual background presented in the case at
bar, … both aggravating circumstances were present in this
matter. Accordingly, [Soto] would be subject to the higher of the
two enhancements, as provided by Section 303.9(l)(3). Pursuant
to enhancement enumerated by Section 303.9(l)(1), [Soto], who
possessed between 200 and 500 images on such videos, would be
subjected to the addition of 12 months to both the lower and
upper limits of the standard range. Accordingly, [Soto] would be
subject to a standard guideline range of 24-36 months. Pursuant
to the enhancement enumerated by Section 303.9(l)(2), [Soto],
who possessed images depicting penetration or attempted
penetration of a child would be, alternatively, subject to an
enhanced Offense Gravity Score of 10, rather than the base
calculation of 9. In that scenario, [Soto] would be subject to a
standard sentencing guideline range of 22-36 months. Pursuant
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25 The trial court determined Soto possessed 300 images, i.e., six videos,
which are each deemed to contain 50 images per Subsection 303.10(e). See
Trial Court Opinion, 7/10/2018, at 57; 204 Pa.Code § 303.10(e)(1)(ii). Soto
does not dispute this calculation.
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to Section 303.9(l)(3), since both aggravating circumstances were
present in the instant matter, the correct guidelines calculation in
this matter for Count Two yielded a standard range of 24-36
months.
Extensive discussion was held at the time of sentencing
relative to the appropriateness of the sentencing guidelines as to
Count Two. (N.T. Sent., pgs. 5-11). In this matter, the attorney
for the Commonwealth provided the court with a guidelines
calculation worksheet, which, for Count Two, utilized an Offense
Gravity Score of 10 and demonstrated a standard range of 22-36
months. (Sentencing Guidelines Worksheet). When counsel for
[Soto] offered an objection to said guideline calculation, the Court
indicated, based on the above authority, that any error in the
guidelines calculation inured to the benefit of [Soto]. Although
this court firmly believes that, pursuant to Section 303.9(l)(3),
that the correct standard guideline range in this matter should be
24-36 months, the court proceeded with sentencing using the
guidelines as presented by the Commonwealth. (N.T. Sent., p.
11). Any error by the Commonwealth did not result in any
prejudice to [Soto]. Rather, [Soto] benefited from the court’s
reliance on the guidelines submitted by the Commonwealth.
Further, it must be recognized that the court sentenced
[Soto] on this count to a sentence of not less than one and one-
half years nor more than five years, to be served consecutively to
the sentence imposed on Count One. As such, regardless of the
manner which the sentencing guidelines were calculated, this
court imposed a mitigated sentence upon [Soto] with respect to
the challenged Count Two. Even had this court not relied upon
either applicable Sexual Abuse of Children Enhancement, in
contradiction to the controlling statutory authority, the sentence
imposed by the court as to this Count would have fallen in the
middle of the standard range. Accordingly, [Soto] suffered no
prejudice as a result of this court’s action. As such, his claim in
this regard must fail.
Id. at 58-59.
We remind Soto that “[s]entencing 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. Conte,
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198 A.3d 1169, 1176 (Pa. Super. 2018), appeal denied, 206 A.3d 1029 (Pa.
2019). Here, it is evident the court was aware of all the relevant
circumstances pertinent to the calculation of an appropriate sentence for Soto,
and imposed a sentence in the mitigated range of the guidelines. Soto does
not challenge the court’s determination that it could have applied the
enhancement at Subsection 303.9(l)(1) based upon the number of images he
possessed, which would have yielded a higher standard guidelines range.26
Accordingly, we need not determine whether the court’s imposition of the
conduct enhancement was appropriate, because any error inured to Soto’s
benefit.
Judgment of sentence affirmed.
Judge Nichols files a concurring memorandum.
Judge Pellegrini files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/16/2019
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26We note that there is no requirement that a defendant must be informed of
the applicable sentencing enhancement prior to the sentencing hearing. See
Commonwealth v. Wilson, 829 A.2d 1194, 1199 (Pa. Super. 2003).
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