Com. v. McNulty, J. ( 2016 )

J-S10013-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES P. MCNULTY
Appellant No. 1767 EDA 2015
Appeal from the Judgment of Sentence May 28, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003422-2014
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 04, 2016
Appellant, James P. McNulty, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his
convictions of two counts of dissemination of child pornography, one count
of criminal use of communication facility, and fifty counts of possession of
child pornography.1 We affirm.
In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them.
Appellant raises the following issue for our review:
____________________________________________
1
18 Pa.C.S.A. §§ 6312(c), 7512(a), and 6312(d), respectively.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
J-S10013-16
WHETHER THE EVIDENCE WAS INSUFFICIENT AS A
MATTER OF LAW TO PROVE THAT APPELLANT COMMITTED
DISSEMINATION OF PHOTOS OF CHILD SEX ACTS, ONE
COUNT OF CRIMINAL USE OF COMMUNICATION FACILITY,
AND FIFTY COUNTS OF POSSESSION OF CHILD
PORNOGRAPHY[,] THE [LOCATION] WHERE APPELLANT
KNOWINGLY DISSEMINATED AND POSSESSED COMPUTER
DEPICTIONS OF CHILDREN UNDER THE AGE OF 18 OR
THAT HE USED OR CONTROLLED A COMPUTER OR THE
IMAGES OF CHILD PORNOGRAPHY[?]
(Appellant’s Brief at 5).2
A challenge to the sufficiency of the evidence implicates the following
legal principles:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless
the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the
____________________________________________
2
To the extent Appellant challenges the sufficiency of the evidence for his
criminal use of communication facility conviction, Appellant failed to raise
this issue in his Rule 1925(b) statement. Appellant’s failure to raise this
issue before the trial court explains why the court’s opinion addressed the
sufficiency of the evidence only for Appellant’s dissemination of child
pornography and possession of child pornography convictions. Additionally,
Appellant’s failure to raise this issue in his Rule 1925(b) statement
constitutes waiver of the issue on appeal. See Commonwealth v.
Poncala, 915 A.2d 97, 100 (Pa.Super. 2006), appeal denied, 594 Pa. 678,
932 A.2d 1287 (2007) (explaining failure to raise issue in court-ordered Rule
1925(b) statement results in waiver of issue on appeal).
-2-
J-S10013-16
combined circumstances. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the [finder] of fact
while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)
(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.
2003)).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Barbara A.
McDermott, we conclude Appellant’s issue on appeal merits no relief. The
trial court opinion comprehensively discusses and properly disposes of the
question presented. (See Trial Court Opinion, filed August 7, 2015, at 7-12)
(finding: facts established Appellant’s control over entire residence at 743
Watkins Street where agents discovered child pornography; specifically,
Appellant confirmed he and his brother were only occupants of that address,
search of Pennsylvania Justice Network verified that Appellant and his
brother resided at that address, and agents recovered personal documents
in Appellant’s name from computer desk at that address; facts also
established Appellant knowingly possessed and controlled child pornography
found on computers at 743 Watkins Street; search of computers seized from
dining room at that address revealed 4 personal documents in Appellant’s
-3-
J-S10013-16
name, 508 child pornography images, 3 child pornography videos, and 100
link files indicative of child pornography; search of computers seized from
Appellant’s bedroom at that address revealed video of Appellant titled
“MeInCoat,” photo of Appellant titled “FacePic,” 844 child pornography
images, and 2 videos indicative of child pornography; importantly, 956 of
1466 child pornography files found on computers seized from that address
were stored under usernames marked “JAMES” and no child pornography
files were discovered under usernames “JUSTIN”; of 510 child pornography
files stored under generic usernames, agents discovered items on those
computers that identified Appellant as user; additionally, evidence
established Appellant had intent to exercise control over child pornography
files; specifically, Appellant made several comments in presence of agents
which implied his use of computers and his knowledge that computers
contained illegal content; under totality of circumstances, sufficient evidence
existed to establish that Appellant knowingly possessed child pornography
discovered on computers confiscated from 743 Watkins Street; sufficient
evidence also existed to prove Appellant possessed child pornography for
purpose of dissemination; on September 15 and 18, 2013, Special Agent
Tabak downloaded two child pornography videos from individual using file-
sharing program to offer child pornography for download on BitTorrent
network; Special Agent Tabak determined that individual who shared child
pornography had used IP address associated with Appellant’s residence;
-4-
J-S10013-16
examination of computer confiscated from Appellant’s bedroom indicated it
was computer used to download two child pornography videos copied by
Special Agent Tabak; further examination of computer revealed that user
had searched for, downloaded, and viewed those two child pornography
videos on September 14, 2013; significantly, Appellant admitted he had
used file-sharing program on computers located at 743 Watkins Street; thus,
sufficient evidence also existed to support Appellant’s dissemination of child
pornography conviction). Accordingly, we affirm on the basis of the trial
court’s opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/4/2016
-5-
Circulated 02/22/2016 11:02 AM
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0003422-2014
CP-51-CR-0003422-2014 Comm. v. McNulty, James P
Opinion
v.
JAMES MCNULTY
111111111111111
7329486551
Ill I II I Ill
OPINION
McDermott, J. August 7, 2015
Procedural History
On January 7, 2014, the defendant, James McNulty, was arrested and charged with two
counts of Dissemination of Photos of Child Sex Acts, one count of Criminal Use of
Communication Facility, and fifty counts of Possession of Child Pornography. On June 17, 2014,
the defendant entered into a non-negotiated guilty plea to two counts of Dissemination of Photos
of Child Sex Acts, one count of Criminal Use of Communication Facility, and twenty-five counts
of Possession of Child Pornography, before the Honorable Ann Butchart. Judge Butchart
deferred sentencing until August 14, 2014, for the completion of pre-sentence and mental health
reports. On August 14, 2014, the defendant filed a Motion to Withdraw his guilty plea, and on
the same date, Judge Butchart granted the defendant's Motion.
On March 26, 2015, the case was transferred to this Court for trial. After a bench trial the
same date, this Court found defendant guilty of all charges and revoked bail. On May 28, 2015,
after a hearing, this Court determined the defendant was not a sexually violent predator. That
same day, this Court sentenced defendant to concurrent terms of imprisonment of two to four
years for both counts of Dissemination of Photo of Child Sex Acts, a consecutive term of
imprisonment of two to four years for Criminal Use of Communication Facility, and one year of
probation for ten counts of Possession of Child Pornography, each to run consecutive to the
other, for a total sentence of four to eight years of imprisonment followed by ten years of
probation. No further penalty was imposed on the forty remaining charges of Possession of Child
Pornography ..
On June 12, 2015, the defendant filed a Notice of Appeal to the Superior Court. On June
16, 2015, this Court ordered the defendant to file a Statement of Matters Complained of on
Appeal pursuant to Pa.R.A.P. 1925(b). On June 25, 2015, the defendant filed a timely Statement.
On September 15, 2013, Special Agent Duane Tabak of the Pennsylvania Attorney
General's Office's Child Predator Section conducted an investigation to identify individuals
possessing and sharing child pornography using the BitTorrent file-sharing network.' On
September 15, 2013, and again on September 18, 2013, Special Agent Tabak made a direct
connection to a computer utilizing the IP address 68.82.141.16. This IP address was operating on
the BitTorrent Network and was making child pornography publicly available for download.
Special Agent Tabak successfully downloaded two video files depicting children, under the age
of eighteen years old, engaging in sexual acts. N.T. 3/26/2015 at 45-47.
On October 24, 2013, Special Agent Tabak obtained a court order directing Comcast to
release the subscriber information associated with IP address 68.82.141.16 for the dates of
September 15 and September 18. On October 28, 2013, Special Agent Tabak received
information pursuant to the order indicating that Wang Chang of743 Watkins Street in
I
BitTorrent is a file sharing Network that allows users to download and share files with others via the internet. N.T.
3/26/2015 at 39.
2
Philadelphia was the subscriber to that IP address. On December 16, 2013, Special Agent Tabak
prepared a search warrant for 743 Watkins Street. N.T. 3/26/2015 at 52-53, 56, 58-59.
On December 16, 2013, Agent Kurt Smith, the Philadelphia Regional Supervisor from
the Attorney General's Office's Child Predator Section, executed the search warrant on 743
Watkins Street. Agent Smith spoke with the defendant who confirmed that he and his brother,
Justin McNulty, lived at 743 Watkins Street.2 During the search of the residence, Agent Daniel
Block testified to overhearing the defendant tell his brother the following statements: "I've
downloaded some extreme stuff, but I always thought they were adults;" "No matter what,
they're going to find something illegal;" "This is horrible shit. They got all my hard drives. How
am I going to show my face around my kids now;" "I didn't get to say good-bye to my kids and
my ass is getting locked up;" and "They are ta1cing my IBM. Fuck." N.T. 3/26/2015 at 85-86,
107-08.
Law enforcement recovered seventy-five computer related items from the McNulty
residence including multiple computers, loose hard drives, and other media storage devices. Law
enforcement also seized a photo ID, a vehicle title, and other paperwork belonging to the
defendant on the computer desk in the first-floor dining room. 3 There was no documentation
pertaining to Justin McNulty in the vicinity of the computers. From what Agent Smith believed
to be Justin McNulty's room, agents recovered a Comcast bill dated September 12, 2013, that
was addressed to Wang Chang. From what Agent Smith believed to be the defendant's bedroom,
agents recovered one Apple computer, one Apple Mac computer tower and one external storage
device. When Agent Smith informed the defendant that the search was related to child
2
Agent Smith later confirmed the defendant and Justin McNulty's addresses through Pa. Justice Network. N.T.
3/26/2015 at 87.
3
The computers were found in the first-floor main room which combined both the living room and dining room.
N.T. 3/26/2015 at 93-94.
3
pornography, the defendant responded, "people get twenty years for downloading." N.T.
3/26/2015 at 61, 92, 96-97, 101.
On November 24, 2014, Agent Braden Cook of the Attorney General's Forensic Unit
examined the items seized from the defendant's residence. According to Agent Cook, nine items
contained child pornography. An examination of an eMachines computer tower confiscated from
the dining room of the McNulty residence revealed a user profile marked "JAMES." Under this
user profile, Agent Cook discovered three child pornography videos and eighty-six Torrent files,
indicative of child pornography, that were downloaded on January 31, 2011, and stored under the
folder marked "Vuze."4 N.T. 3/26/2015 at 124, 134-35, 137.
From an Apple Mac Minicomputer, seized from the dining room, Agent Cook recovered
508 child pornography images under the user profile marked "FirstLast." Also under this user
profile, Agent Cook discovered four business documents belonging to the defendant including: a
rejection letter from the Patent and Trademark Office addressed to the defendant and dated May
14, 2013; a letter addressed to Mr. Kurt Hughes from the defendant; an amendment name change
document; and articles of amendment for "Holoco Incorporated," listing the defendant as
Chairman and sole director. There was no relevant information discovered under the user profiles
marked "GateVistaJames" and "VaioPrintJames." N.T. 3/26/2015 at 165-67.
Agent Cook examined a Compaq Presario C500 laptop computer, also confiscated from
the dining room. There were two non-default user profiles associated with this laptop computer,
one marked "JAMES" and the other marked "JUSTIN." Agent Cook retrieved twenty-four link
files that were indicative of child pornography stored under the user profile "JAMES." Agent
4
Vuze is a file-sharing program accessible on the BitTorrent network that allows users to share electronic files. N.T.
3/26/2015 at 38.
4
Cook did not discover any child pornography stored under the user profile "JUSTIN." N.T.
3/26/2015 at 168-69.
An examination of an Apple Power Mac G5 computer tower that agents seized from the
defendant's bedroom revealed a user profile marked "JAMES." Under this user profile, Agent
Cook discovered a Vuze file-sharing program and 843 child pornographic pictures that were
downloaded on August 3, 2009. N.T. 3/26/2015 at 140-41.
Agent Cook examined an Apple iMac computer, also recovered from the defendant's
bedroom, which revealed one child pornographic picture downloaded on January 12, 2012, and
stored under a non-default user profile marked "USER." Elsewhere on this computer, Agent
Cook discovered the two videos that Special Agent Tabak successfully downloaded on
September 15, 2013 and September 18, 2013. Special Agent Tabak determined that both videos
were searched and downloaded on September 14, 2013, and further determined that both videos
were viewed on this computer. In an attempt to identify the user of this profile, Agent Cook
examined other files located on this computer and found a video of the defendant with the file
name "MelnCoat" and a picture of the defendant with the file name "FacePic." N.T. 3/26/2015 at
152, 154, 161-164.
On December 16, 2013, law enforcement issued an arrest warrant for the defendant. On
January 7, 2014, the defendant surrendered. N.T. 3/26/2015 at 98-99.
Justin McNulty, the defendant's brother, testified on the defendant's behalf that Justin
McNulty operated a computer repair business in his home. Justin McNulty recalled working on
four customers' computers on December 16, 2013, and indicated that most of the computers
confiscated from the first floor belonged to his customers. According to Justin McNulty, his
employee, James Smith, who had been installing operating systems on the customers' computers
5
since 2002, was responsible for putting "JAMES" as the primary default account on these
computers. Justin McNulty testified that the defendant carried his own laptop around with him
and had used a separate Wi-Fi system from Clear Channel since 2005. Justin McNulty and his
neighbor Wang Chang agreed to put the cable Wi-Fi service from Comcast in Wang Chang's
name, creating an open network for both parties to use. N.T. 3/26/2015 at 182, 185-87, 198, 202.
Justin McNulty also presented alibi evidence that he picked up the defendant on Tuesday,
September 10, 2013, from his probation meeting and transported him to Kelly Baran's residence
in New Jersey. He believed the defendant remained in New Jersey until Friday, September 13,
2013, at which time he picked up the defendant and drove him to his residence at 743 Watkins
Street in Philadelphia, where the defendant remained for the weekend. Justin McNulty then
drove the defendant back to New Jersey on Sunday, September 15, 2013, where the defendant
remained until September 20, 2013. N.T. 3/26/2015 at 205-06.
Kelly Baran, the mother of the defendant's children, testified on behalf of the defense.
Baran testified that in September of 2013, the defendant would stay with her at her home located
in National Park, New Jersey and with his brother in Philadelphia. Baran stated that the
defendant was in New Jersey the week before his daughter's birthday on September 20, 2013,
and departed the night of September 20, 2013. N.T. 3/26/2015 at254-55, 257, 259.
The defendant testified to being in New Jersey on the 15 and 18 of September, 2013. The
defendant admitted to using the computers agents confiscated from 7 4 3 Watkins Street, but
specified that he worked primarily on a computer that he kept in his possession. The defendant
denied downloading any child pornography on any computers and stated that he never set up the
user profile "JAMES." N.T. 3/26/2015 at 224-25, 229-30, 237, 240.
6
The defendant claims that the evidence was insufficient to support his convictions
because the Commonwealth failed to establish the defendant knowingly disseminated or
possessed computer depictions of children engaging in a prohibited sexual act or that the
defendant knowingly controlled child pornography.
Evidence presented at trial is sufficient when, viewed in the light most favorable to the
Commonwealth as the verdict winner, the evidence and all reasonable inferences derived
therefrom are sufficient to establish all elements of the offense beyond a reasonable doubt.
Commonwealthv. Baumhammers, 960 A.2d 59, 68 (Pa. 2008). The Commonwealth may sustain
its burden of proving every element of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence: Commonwealth v. Estepp, 17 A.3d 939, 943 (Pa. Super. 2011) (citing
Commonwealth v. Brooks, 7 A.3d 852, 856-57 (Pa. Super. 2010)). The fact-finder is free to
believe all, part, or none of the evidence, and credibility determination rest solely within the
purview of the fact-finder. Commonwealth v. Treiber, 874 A.2d 26, 30 (Pa. 2005).
The defendant claims that the evidence is insufficient to prove he controlled child
pornography. 18 Pa.C.S. § 6312(d) establishes that a person is guilty of Sexual Abuse of
Children if:
Any person intentionally views or knowingly possesses or controls
any book, magazine, pamphlet, slide, photograph, film, videotape,
computer depiction or other material depicting a child under the
age of 18 years engaging in a prohibited sexual act or in the
simulation of such act.
Commonwealth. v. Diodoro, 970 A.2d 1100, 1107 (Pa. 2009). The Commonwealth need not
establish that an individual controlled the child pornography to prove a violation of the statute if
it can prove that a defendant knowingly possessed the child pornography. Id. at 1107.
7
Possession can be proven by showing actual possession or by showing constructive
possession. Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa. Super. 2014). Courts have
defined constructive possession as "the ability to exercise a conscious dominion over the
material; the power of control and the intent to exercise that control." Commonwealth v. Hanson,
82 A.3d 1023, 1035 (Pa. 2013).
Constructive possession can be proven by circumstantial evidence and the requisite
knowledge and intent may be inferred from examination of the totality of the circumstances.
Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004). For example, in Commonwealth
v. Davidson, the Superior court held that the evidence was sufficient to establish that defendant
knowingly possessed images of child pornography that were found on his computer. The
Commonwealth presented evidence that the defendant was the owner and administrator of the
computer and each of the twenty-eight pornographic photographs appeared in more than one
place on the defendant's computer. Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa. Super.
2004) aff'd, 938 A.2d 198 (Pa. 2007).
Similarly, in Commonwealth v. Koehler, the Superior Court held that the evidence was
sufficient to support the defendant's convictions of Sexual Abuse of Children and Possession of
Child Pornography. There, the evidence consisted of a screen name and a systems properties
name all referring in some respects to the defendant's proper name. The evidence also
demonstrated that the defendant had ownership, use, and the ability to access the computer and
the child pornography. Based on the totality of the circumstances, the court reasonably inferred
that the defendant was the person who possessed the child pornography. Commonwealth v.
Koehler, 914 A.2d 427, 437 (Pa. Super. 2006).
8
Other factors utilized by courts to determine whether a defendant possessed child
pornography include: the defendant's ability to retain, download, save or print the image, the
defendant's assertive steps that led to the downloading of child pornography images, and the
defendant's knowledge of the existence of the images of child pornography. Diodoro, 970 A.2d
at 1107 (holding that the evidence was sufficient to find the defendant guilty of Possession of
Child Pornography where the defendant had 340 images of child pornography images stored on
his hard drive.)
In the instant case, the evidence establishes that the defendant knowingly possessed the
child pornography discovered on the computers confiscated from 743 Watkins Street. The
defendant resided at 743 Watkins Street and confirmed that he and his brother were the only
occupants of the residence. N.T. 3/26/2015 at 87. Agent Smith conducted a search on the
Pennsylvania Justice Network ("JNET") which verified that Justin and James McNulty were the
residents of 743 Watkins Street. Id. In addition, agents recovered mailing and personal
documents addressed to the defendant from the computer desk located in the dining room
identifying his address as 743 Watkins Street. Id. at 95-96. Such facts are sufficient to prove the
defendant had control over the entire premises, including the areas where the computers
containing child pornography were located.
The pornographic files Agent Cook discovered on the seized computers provided further
support that the defendant had control and access to the child pornography. From the eMachines
computer tower, the Apple Mac Minicomputer and the Compaq Presario laptop computer, all
seized from the dining room, Agent Cook collectively retrieved four personal documents
belonging to the defendant, 508 child pornography images, three child pornographic videos, and
100 link files indicative of child pornography. N.T. 3/26/2015 at 134, 137-38, 166, 168. From the
9
Apple Power Mac GS computer tower and Apple iMac computer, both confiscated from the
defendant's bedroom, Agent Cook collectively discovered a video of the defendant named
"MelnCoat," a photograph of the defendant named "FacePic," 844 pornographic images, and
two video files indicative of child pornography. Id. at 140, 152, 163.
956 out of the 1,466 child pornography files found by Agent Cook were stored under
folders or user names marked "JAMES." No pornographic material was found under the user
profile marked "JUSTIN" N.T. 3/26/2015 at 169. For the 510 child pornography files stored
under generic user profiles, Agent Cook discovered items that identified the defendant as the
user of these computers. On the Apple iMac computer seized from the defendant's bedroom,
Agent Cook discovered a video of the defendant with the file name "MelnCoat," and a picture of
the defendant with the file name "FacePic." Id. at 163. On the Apple Mac minicomputer
confiscated from the dining room, Agent Cook discovered four business documents belonging to
the defendant. This evidence provides indicia of the defendant's control and ownership of the
child pornography. Id. at 166.
Additionally, the evidence established that the defendant had the intent to exercise
control over the child pornography. Intent to exercise control over material may be established
by knowledge of its presence. Commonwealth v. Bricker, 882 A.2d 1008, 1016 (Pa. Super.
2005). According to both Agent Smith and Agent Block, the defendant admitted: (1) "They got
all my hard drives ... "; (2) "I've downloaded some extreme stuff, but I always thought they
were adults"; and (3) "People get twenty years for downloading." N.T. 3/26/2015 at 89, 107-08.
The defendant's comments provide evidence that the computer hard drives belonged to him and
that he knew the computers contained illegal content. In reviewing the totality of the
10
circumstance, the evidence establishes that the defendant knowingly possessed material
depicting children engaging in prohibited sexual acts.
Next, the defendant claims that evidence was insufficient to show that he possessed child
pornography for the purpose of dissemination. To be convicted under 18 Pa.C.S. § 6312(c), the
Commonwealth must prove beyond a reasonable doubt, that: (1) there was a depiction of an
actual child engaged in a prohibited sexual act or simulation of such act; (2) the child must be
under the age of 18; and (3) defendant knowingly sold, distributed delivered, disseminated,
transferred, displayed or exhibited the depiction to others, or possessed the depiction for the
purpose of sale, distribution, delivery, dissemination, transfer, display or exhibition to others.
Commonwealth. v. McCue, 487 A.2d 880, 883 (Pa. Super. 1985). The meaning of "disseminate"
includes the act of spreading, sending, fostering general knowledge of, broadcasting, or
publicizing. Commonwealth v. Hacker, 959 A.2d 380, 389 (Pa. Super. 2008) rev'd on other
grounds, 15 A.3d 333 (Pa. 2011).
As discussed supra, the evidence sufficiently established the defendant knowingly
possessed the pornographic files. The evidence also establishes that the defendant knowingly
disseminated depictions of child pornography. On the 15 and 18 of September, 2013, Special
Agent Tabak downloaded two child pornography files from an individual using a Vuze file-
sharing program to offer child pornography on the BitTorrent Network. N.T. 3/26/2015 at 45-47.
Special Agent Tabak determined that the individual offering the pornography utilized an IP
address associated with the defendant's residence. Id at 159.
An examination of an Apple iMac computer confiscated from the defendant's bedroom
indicated that this computer was used to download the two video files Special Agent Tabak
copied on the 15 and 18 of September, 2013. According to Agent Cook, these video files were
11
searched for, downloaded, and viewed on this Apple iMac computer on September 14, 2013,
using a Vuze file-sharing program. Id. at 159, 160, 162.
The defendant admitted to using the computers located at 743 Watkins Street, and further
admitted to using a Vuze file-sharing program. N.T. 3/26/2015 at 232. This Court concluded that
the defendant, who had two personal files stored on the same Apple iMac computer that also
contained the two child pornography videos Special Agent Tabak downloaded on September 15
and 18, 2013, was the user of the computer and the individual who offered the file for public
download on the BitTorrent Network. Therefore, the evidence is sufficient to establish the
defendant disseminated child pornography using a Vuze file-sharing program.
For the foregoing reasons, defendant's judgment of sentence should be affirmed.
BY THE COURT,
Barbara A. McDermott, J.
12
Commonwealth v. James McNulty, CP-Sl-CR-0003422-2014
PROOF OF SERVICE
I hereby certify that I am this day serving the foregoing filing upon the person(s), and in the
manner indicated below, which service satisfies the requirements of Pa. R. Crim. P. 114:
Philadelphia District Attorney's Office
Three South Penn Square
Philadelphia, PA 19107
Attn: Hugh Burns, Esquire
Type of Service: Hand Delivery
John McMahon, Esquire
13 9 N. Croskey Street
Philadelphia, PA 19103
Type of Service: Certified Mail
Dated: August 7, 2015
Amifj)---
Law Clerk to the
Honorable Barbara A. McDermott