Com. v. Lafferty, S. ( 2017 )

J-A12006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHANE D. LAFFERTY
Appellant No. 573 WDA 2015
Appeal from the Judgment of Sentence Dated February 24, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0004063-2014
BEFORE: OLSON, J., SOLANO, J., and RANSOM, J.
MEMORANDUM BY SOLANO, J.: FILED SEPTEMBER 27, 2017
Appellant, Shane D. Lafferty, appeals from the judgment of sentence
imposed after he was convicted of two counts of child pornography. 1 We
affirm.
An undercover investigation into the possession and distribution of
child pornography by Pennsylvania State Police’s Southwest Computer Crime
Task Force led the police to obtain a warrant to search an address on
Fallowfield Avenue in Pittsburgh. Police executed the warrant on
October 29, 2013. When no one answered the door after they knocked
loudly for over a minute, police kicked in the door. They found Appellant
exiting an upstairs bedroom. Appellant’s laptop computer was on the bed
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1
18 Pa.C.S. § 6312(d).
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with a file sharing program running. No other person was in the room at
that time.
A forensic investigation of the laptop computer confirmed that it
contained child pornography. As the trial court noted:
Appellant conceded that his computer contained child
pornography but alleged that others had access to the computer
and may have downloaded child pornography without his
consent or knowledge. The parties also stipulated that between
April 5, 2013, and June 27, 2013, Appellant did not have access
to his computer.
Trial Ct. Op. at 2. At the time Appellant’s laptop was seized, he participated
in a tape-recorded interview by the police in which he denied responsibility
for the child pornography on the laptop. N.T., 2/17/15, at 154, 167-69.
Appellant was arrested in March 2014:
Officer Dennis Baker of the City of Pittsburgh Police Department
testified that on March 9, 2014 he was dispatched to a residence
on Fallowfield Avenue to execute an arrest warrant for Appellant.
Officer Baker knocked on the door and a man answered and
identified himself as Brian Wells. The officer identified Appellant
in court as the individual who said he was Brian Wells. “Brian
Wells” told the officer that Appellant resided in the home but was
not present at that time. Officer Baker asked Appellant to
provide any identification, such as a driver’s license or a piece of
mail with his name on it, but Appellant could not produce these
items. Appellant was asked his date of birth by three different
officers and Appellant gave three different responses. Officer
Baker arrested him, at which point Appellant said, “I’m Shane
Lafferty. I’m the one you’re looking for.”
Trial Ct. Op. at 5 (citations omitted).
The trial court described Appellant’s trial as follows:
The Commonwealth presented evidence to explain to the jury
the procedure the State Police used to determine the presence of
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child pornography on the laptop computer owned by Appellant.
Corporal [John] Roche testified that he created a PowerPoint
presentation to explain his forensic examination of Appellant’s
computer. The PowerPoint was used as demonstrative evidence
but was never offered or admitted into evidence.
Corporal Roche examined Appellant’s computer and found
approximately forty-three downloads with Appellant’s name
associated with it. Corporal Roche listed the downloads
chronologically and testified that the activity of creating
downloaded files ended on March 10, 2013 and resumed on
June 29, 2013. The Corporal’s search results also included a
handful of downloads associated with either Wendy Cross or Amy
Cross, other residents of Appellant’s home. None of the
downloads associated with Wendy or Amy Cross contained child
pornography.
Corporal Roche gave as an example of the computer’s activity
the files indexed on Appellant’s computer on July 9, 2013.
Corporal Roche testified that on July 9, 2013, at 4:50 p.m., a
text file was created on Appellant’s computer called “Shane’s
food stamp app.number.text.” File sharing of child pornography
occurred on the same date at 4:37 p.m. and at 5:05 p.m.
Corporal Roche concluded that the same person who created the
document “Shane’s food stamp app.number.text” was at the
same time sharing child pornography through BitTorrent.[2] . . .
Appellant called several witnesses in an effort to cast blame on
David Cross[, Amy Cross’ brother,] for the child pornography on
Appellant’s computer. Thomas Betker testified that he lived at
[Appellant’s address] in the summer of 2013 with his girlfriend
Jordan Thomas, Appellant, Amy Cross (Appellant’s ex-girlfriend),
and her mother Wendy Cross, and said that during that summer
David Cross periodically resided there as well. Betker testified
that he never saw Appellant access child pornography, that other
individuals had access to Appellant’s laptop computer during the
relevant time frame, and that one of those individuals was David
Cross. David would take the computer to a more private area of
the home when he used it and at one point indicated a desire to
destroy the computer. Jordan Thomas and a neighbor, Bridget
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2
“BitTorrent is a network that the State Police monitor for the distribution of
child pornography.” Trial Ct. Op. at 3.
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Aber, testified similarly. In addition, Aber testified that David
Cross confided to her that he had a sexual predilection toward
children.
Amy Cross, David’s sister, gave testimony that mirrored that of
Betker, Thomas and Aber, but added that she had observed
David Cross looking at child pornography when he was fourteen
years old. Amy Cross testified that David Cross has prescription
medication for a medical condition but he told her that he
doesn’t like to take it because it negatively affects his ability to
control sexual urges he has towards children.
Nathaniel Wells, a high school friend of David Cross, testified
that he observed David Cross looking at child pornography
twelve years ago when Cross would have been seventeen years
old. Wells further testified that he and Cross argued on
Facebook over what Wells referred to as Cross’ use of scripture
to justify Cross’ pedophilia.
David Cross testified on rebuttal under a grant of immunity. He
denied using Appellant’s computer to access child pornography.
He denied having any conversation with Aber regarding an
interest in having sex with young girls. He denied having been
caught looking at child pornography by Wells twelve years ago.
He stated that he was not at the Fallowfield address on the
relevant dates and at the relevant times: July 3, 2013, at 6:00
a.m., on July 8, 2013 at 3:00 a.m., or on July 9, 2013 at 12:35
p.m. Further, he stated that he resided at the Fallowfield
address in 2012 but had moved out by Christmas 2012 and was
not residing there during the summer of 2013.
Amy Cross was called as a surrebuttal witness. She testified
that David Cross once explained to her that a person interested
in child pornography can use a “Pedobear” which is an otherwise
innocuous image such as the cartoon pony from “My Little Pony”
to express that person’s pedophilic predilections.
Trial Ct. Op. at 4-7 (footnotes and citations omitted; some formatting
altered).
One of the issues in this appeal concerns the following events that
occurred during jury deliberations. In the course of the deliberations, the
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jury twice asked to hear the tape of Appellant’s interview by the police on
the day the laptop was seized. That tape was played for the jury by one of
the Commonwealth’s witnesses, Corporal Gerhard Goodyear, a State Police
officer who had testified during the trial as an expert on computer forensics
and peer-to-peer file sharing investigations. See Trial Ct. Op. at 3-4, 7-8.
The trial court recounted these events as follows:
Corporal Goodyear entered the jury room on two separate
occasions to play an audio file of the police interview with
Appellant that was on the Commonwealth’s laptop. Counsel was
informed that Corporal Goodyear was going to play the audio for
the jury but counsel mistakenly presumed a technician from the
Office of the District Attorney, and not the Trooper who had
testified, would be the individual who entered the jury room.7
7
[The trial c]ourt’s practice at the time was that, when
evidence contained on a Commonwealth laptop was
requested by a jury, with the consent of counsel a
technician from the Office of the District Attorney would
enter the jury room with the tipstaff to operate the laptop.
After learning that the Trooper had entered the jury room to play
the audio file requested by the jury, Appellant’s counsel placed
an objection o[n] the record. Counsel for Appellant was given an
opportunity to develop a record by calling Corporal Goodyear
and th[e trial c]ourt’s tipstaff, George Nichols, to explain the
circumstances of how a Commonwealth witness ended up in the
jury room. Nichols testified that on the first occasion, Corporal
Goodyear entered the jury room and played the audio file for the
jury without Nichols in the room. The second time the jury
asked to hear the interview, Nichols testified that the Corporal
played the audio file for the jury in his presence. Nichols
testified that he did not hear the jury ask the Trooper any
questions.
Corporal Goodyear testified that when he was in the jury room
the first time to play the audio file, the jury asked if they could
play the recording without the Corporal being present. He
replied that either he or George had to be present because the
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thumb drive that contained the interview also contained other
items which were not introduced into evidence. The jury asked
if they could have a transcript of the interview and the Corporal
replied that no transcript was available. The Corporal testified
that no other discussions occurred while he was in the jury
room.
Id. at 11-12.
When it was revealed that Corporal Goodyear had spoken to the
jurors, Appellant’s counsel objected: “I object to that, Your Honor. He’s a
Commonwealth witness. All the communication with the jurors should be
from the Court or George.” N.T. at 539. Counsel continued that he was
under the impression that the tape would be played by someone who was
not a Commonwealth witness and then added: “I don't want a mistrial. I
just don’t want it to happen anymore.” Id. at 542. The trial court then
specifically directed Appellant’s counsel “to determine whether or not he
would request a mistrial.” Id. at 544. After asking further questions of
Corporal Goodyear and the tipstaff, Appellant’s counsel stated, “[A]t this
point I would like to state it was a good faith mistake. I think we all
interpreted him saying he was going to run them up there as he was going
to have them run up there or have the interview played.” Id. at 547.
Counsel asked for an opportunity to consult with his client and then
reported: “Your Honor, I’ve spoke with Mr. Lafferty. We want to continue
with the deliberations. We’re not going to ask for a mistrial at this time.”
Id. at 548.
On February 20, 2015, the jury convicted Appellant.
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At Appellant’s sentencing hearing on February 24, 2015, the trial court
stated: “I do not find anything in particular that would mitigate or anything
necessarily that would aggravate the factors already taken into consideration
in the guideline form. . . . I impose a standard range sentence[.]” N.T.,
2/24/15, at 19-20. The trial court sentenced Appellant to two to four years
of incarceration with six years consecutive probation.
On March 6, 2015, Appellant filed post-sentence motions, including a
motion to reconsider his sentence and a “Motion for Judgment of Acquittal,”
requesting that “a new trial should be awarded in the interests of justice and
because the jury verdict was against the weight of the evidence.” Post-
sentence Motions, 3/6/15, at 1-5. On March 10, 2015, the trial court denied
the post-sentence motions.
On April 9, 2015, Appellant filed a timely notice of appeal to this
Court.3 In that appeal, Appellant raises the following issues, as stated in his
brief:
I. When the Commonwealth’s primary witness, Cpl.
Goodyear, twice invaded the privacy of the jury room during
deliberations, interacted with the jury, distributed evidence, and
refused to leave when asked by the jurors, is a new trial
warranted?
A. As [Appellant] was denied due process of law.
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3
The trial court observed: “A considerable delay ensued as the trial
transcript was not filed in a timely manner. Appellant obtained the
transcript on August 18, 2016 and filed a Concise Statement of Matters
Complained of on Appeal on September 7, 2016.” Trial Ct. Op. at 2.
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B. The trial court erred by failing to hold a hearing
following the procedure in Remmer v. U.S., 347 U.S. 227(1954), “to determine the circumstances, the impact on
the jury, and whether or not it was prejudicial, with all
interested parties permitted to participate.”
C. The trial court erred when it did not give curative or
cautionary instructions (if that was even possible).
II. Was the evidence insufficient to sustain the verdicts when
the primary Commonwealth witnesses testified that there was no
evidence that [Appellant] used the lap top computer to
share/download files of child pornography on the dates alleged in
the criminal information and that they merely assumed he was
home at that time?
III. Was the verdict contrary to the weight of the evidence
when viewed in its entirety since the evidence was so weak,
tenuous and vague?
IV. Did the sentencing court abuse its discretion by imposing a
sentence that was inconsistent with the norms underlying the
sentencing code and focused almost exclusively on the
seriousness of the offenses to the exclusion of other pertinent
factors?
Appellant’s Brief at 6-7 (emphasis in original).
Interference with Jury Deliberations
Appellant first contends that, “when the Commonwealth’s primary
witness, Cpl. Goodyear, twice invaded the privacy of the jury room during
deliberations, interacted with the jury, distributed evidence and refused to
leave when asked by the jurors, a new trial is warranted.” Appellant’s Brief
at 23 (emphasis in original). He continues that “[i]t is well established that
insertion of outside influences into a jury’s deliberative process is contrary to
the foundations upon which our system of justice rests.” Id. at 31-32.
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Appellant argues that the trial court should have held a hearing following the
procedure in Remmer v. United States, 347 U.S. 227 (1954), which
requires the trial court, upon learning of events that may have had an
improper impact on a juror, to hold a hearing (at which all parties are
permitted to participate) to determine the circumstances surrounding the
incident, its effect on the juror(s), and whether or not it was prejudicial to
the defendant. Appellant’s Brief at 31. Without such a hearing, Appellant
maintains that he “was denied due process of law.” Id. at 23. He also
insists that the trial court should have “give[n] curative or cautionary
instructions . . . to remedy any prejudice that might [have] result[ed].” Id.
at 41. Ultimately, Appellant contends that what happened in the jury room
entitles him to a new trial.
In the first place, we observe that immediately after it learned that
Corporal Goodyear had entered the jury room and spoken to the jurors, the
trial court questioned both Corporal Goodyear and its tipstaff about what
happened and then allowed Appellant’s counsel to conduct further
questioning. The court did not question the jurors, but Appellant made no
request that the court do so. Rather, Appellant’s counsel dismissed what
happened as “a good faith mistake” and said that he “just [did]n’t want it to
happen anymore.” N.T. at 542, 547. Appellant therefore has no basis to
challenge the trial court’s hearing as inadequate.
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Nor does Appellant have a basis for a new trial or relief from his
judgment of sentence. We have stated:
“When an event prejudicial to a defendant occurs at trial, he
may either object, requesting curative instructions, or move for
a mistrial.” Commonwealth v. Meekins, 266 Pa. Super. 157,
403 A.2d 591, 596 (1979). Pursuant to Pa.R.Crim.P. [605](b),
in order for a motion for a mistrial to be timely, it must be made
when the alleged prejudicial event occurs.
Commonwealth v. Boring, 684 A.2d 561, 568 (Pa. Super. 1996), appeal
denied, 689 A.2d 230 (Pa. 1997).
This rule applies to unlawful intrusions into jury deliberations. For
example, in Commonwealth v. Cole, 135 A.3d 191, 194 (Pa. Super.),
appeal denied, 145 A.3d 162 (Pa. 2016), the trial court allowed an
employee of the district attorney’s office to access the jury room to play a
surveillance video during deliberations. This Court held any challenge to this
entry into the jury room by the district attorney’s office employee to be
waived “for failure to properly object during trial.” Id. (citing
Commonwealth v. Baumhammers, 960 A.2d 59, 84 (Pa. 2008) (“the
absence of a specific contemporaneous objection renders the appellant’s
claim waived”)).4
Here, the trial court invited Appellant to move for a mistrial after it
learned what had happened. N.T. at 544. Appellant’s counsel consulted
with his client and then reported: “Your Honor, I’ve spoke with Mr. Lafferty.
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4
This Court nonetheless addressed the merits and held that the defendant
was not entitled to relief. Cole, 135 A.3d at 194.
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We want to continue with the deliberations. We’re not going to ask for a
mistrial at this time.” Id. at 548. Appellant did not ask for a curative
instruction or any other relief. It was not until after the jury rendered its
verdict that Appellant switched positions on this issue. As the trial court
correctly held, by then it was too late, as Appellant had already waived this
issue. See Trial Ct. Op. at 12-13 (citing Boring, 684 A.2d at 568).
Although we strongly disapprove of the blatant impropriety of violating
the sanctity of the jury room, we are constrained to agree with the trial
court that this issue has been waived. Appellant’s issues relating to this
incident are therefore untimely and merit no relief.5
Sufficiency of the Evidence
Appellant asserts:
The evidence was insufficient to sustain the verdicts when the
primary Commonwealth witness, Cpl. Goodyear, testified that
there was no evidence that [Appellant] used the lap top
computer to share/download files of child pornography on the
dates alleged in the criminal information and that he merely
assumed the he was home at that time.
[Appellant] was convicted of two (2) counts of Possession of
Child Pornography under 18 Pa.C.S.A. § 6312(d), Sexual Abuse
of Children, Child Pornography. This section provides that “[a]ny
person who intentionally views or knowingly possesses or
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5
Our holding of waiver does not foreclose Appellant’s right to seek collateral
relief for ineffective assistance of counsel. See Commonwealth v. Grant,
813 A.2d 726, 738 (Pa. 2002) (ineffective assistance of counsel claims are
normally withheld until collateral review proceedings); see also
Commonwealth v. Burno, 94 A.3d 956, 963 (Pa. 2014), cert. denied,
135 S. Ct. 1493 (2015).
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controls any book, magazine, pamphlet, slide, photograph, film,
videotape, computer depiction or other material depicting a child
under the age of 18 years engaging in a prohibited sexual act or
in the simulation of such act commits an offense.” The
Commonwealth must prove . . . the defendant must have
knowingly possessed or controlled the depiction.
In the instant case, there is a lack of evidence establishing
that [Appellant] knowingly possessed and controlled the child
pornography on the laptop.
Appellant’s Brief at 42-43 (formatting and citation omitted). Appellant
claims that he lacked exclusive possession and control over the laptop.
On an evidentiary sufficiency claim —
Our standard of review for a sufficiency of the evidence
challenge is well established:
A claim challenging the sufficiency of the evidence
presents a question of law. We must determine whether
the evidence is sufficient to prove every element of the
crime beyond a reasonable doubt. We must view evidence
in the light most favorable to the Commonwealth as the
verdict winner, and accept as true all evidence and all
reasonable inferences therefrom upon which, if believed,
the fact finder properly could have based its verdict.
Commonwealth v. McFadden, 156 A.3d 299, 303 (Pa. Super. 2017)
(citation omitted).
Viewing the record in a light most favorable to the Commonwealth, the
trial court recited the evidence establishing that Appellant knowingly
possessed and controlled the depictions on the computer:
[The] laptop was recovered from [Appellant]’s bed, with a file
sharing program running on it at that time. Appellant admitted
that the computer was his and that the images on his computer
constituted child pornography. Corporal Roche’s testimony
established that child pornography was downloaded during a
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time that someone with Appellant’s first name created a
document entitled “Shane’s food stamp app.number.text.”
Furthermore, Corporal Roche’s testimony established that no
child pornography was downloaded for months while Appellant
was out of the residence and unable to access the laptop, but
upon his return into the home, child pornography was
downloaded. When informed of his arrest warrant and given the
opportunity to self-report, Appellant agreed to do so but did not.
Subsequently, after police arrived at his residence to arrest him,
Appellant[] lied to the police regarding his identity.
Trial Ct. Op. at 9. Notwithstanding his argument that he did not have
exclusive possession and control over the laptop, Appellant’s Brief at 42-43,
Appellant admitted the computer was his. Trial Ct. Op. at 4 (citing N.T. at
161, 223), 9.
We agree with the trial court that this evidence was sufficient for the
jury, as fact-finder, to find that Appellant knowingly possessed and
controlled the computer and, hence, the child pornography saved on it. See
18 Pa.C.S. § 6312(d); McFadden, 156 A.3d at 303. Appellant does not
challenge any other element of his child pornography convictions. We
therefore hold that there was sufficient evidence for the jury to have
properly rendered its verdict of guilty as to both counts of child pornography
pursuant to 18 Pa.C.S. § 6312(d).
Weight of the Evidence
Appellant also challenges the weight of the evidence, alleging:
In the present case, the verdict was against the weight of the
evidence where: neither Cpl. Goodyear and Cpl. Roche were
able to establish that [Appellant] was in fact the individual who
was using the lap top on the date and times the child
pornography was being downloaded or shared; the
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Commonwealth’s rebuttal witness, David Cross’ testimony was
wholly incredible and should have been given no weight since he
testified under a grant of immunity and demonstrated an
incentive to lie to deflect his own possible wrong doing, despite
the fact that other witnesses testified that he also had access to
the lap top in question; David Cross previously revealed that he
had sexual urges towards pre-pubescent girls to defense witness
Bridgett Aber and that she also testified that he had very
peculiar habits when using a laptop computer, including needing
an extraordinary amount of privacy when using it; and defense
witness Nathaniel Wells testified that he personally saw David
Cross viewing child pornography that was the same type that the
Commonwealth claimed that [Appellant] possessed/shared, Mr.
Wells also credibly testified that he argued with David Cross over
Mr. Cross’ posting of scripture that justified his attraction to child
pornography. Hence, the verdicts rendered were contrary to the
weight of the evidence presented as the Commonwealth’s
evidence was so weak, tenuous, and vague that no finding of
guilt could have been reached.
Appellant’s Brief at 45-46.6
We have held:
The weight of the evidence is exclusively for the finder of fact,
who is free to believe all, none or some of the evidence and to
determine the credibility of the witnesses.
Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge
has had the opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration to the
findings and reasons advanced by the trial judge when reviewing
a trial court’s determination that the verdict is against the weight
of the evidence. One of the least assailable reasons for granting
or denying a new trial is the lower court’s conviction that the
verdict was or was not against the weight of the evidence and
that a new trial should be granted in the interest of justice.
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6
Pursuant to Pa.R.Crim.P. 607, Appellant’s challenge to the weight of the
evidence was preserved in his post-sentence motions, which included a
motion for a new trial. Post-sentence Motions, 3/6/15, at 1-5.
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In order for a defendant to prevail on a challenge to the weight
of the evidence, the evidence must be so tenuous, vague and
uncertain that the verdict shocks the conscience of the court.
Commonwealth v. Talbert, 129 A.3d 536, 545-46 (Pa. Super. 2015)
(formatting, internal brackets, citations, and quotation marks omitted),
appeal denied, 138 A.3d 4 (Pa. 2016). “Resolving contradictory testimony
and questions of credibility are matters for the factfinder.” Commonwealth
v. Hopkins, 747 A.2d 910, 917 (Pa. Super. 2000).
After a thorough review of the record in this matter, we conclude that
the trial court did not abuse its discretion in denying Appellant’s motion for a
new trial. We agree with the trial court that:
Appellant’s theory of the case was that David Cross or another
individual used Appellant’s computer to download child
pornography. Based on the evidence presented at trial, the
verdict does not so shock the conscience as to necessitate a new
trial. The testimony, if believed, that David Cross viewed child
pornography over ten years prior, held unconventional opinions
regarding free love, and may have expressed a desire to destroy
certain computers5 pales in the face of the Commonwealth’s
evidence that the child pornography on Appellant’s computer
was downloaded coincident with Appellant’s return to the home
and not with a visit by Cross to the home. Furthermore,
Appellant’s name was associated with the downloads and no
testimony placed Cross in the home at or immediately preceding
the downloads. The jury could reasonably conclude that
Appellant used his computer to download child pornography. As
such, Appellant’s claim is without merit.
5
Even if Cross used Appellant’s computer at some point,
that does not preclude the possibility that Appellant
downloaded the child pornography in question.
Trial Ct. Op. at 10.
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Appellant essentially asks us to reassess the credibility of the
witnesses and to reweigh the testimony and evidence presented at trial.
See Appellant’s Brief at 45-47. We cannot and will not do so. The jury
found credible Corporal Roche’s testimony that someone with Appellant’s
first name created a document entitled “Shane’s food stamp
app.number.text,” that no child pornography was downloaded for months
while Appellant was out of the residence and unable to access the laptop,
and that downloading of the pornography resumed after Appellant returned
to his home. Thus, the trial court concluded that the verdict was not so
contrary to the evidence as to shock the court’s conscience and hence was
not against the weight of the evidence. We discern no abuse of discretion in
that ruling.
Sentencing
Finally, Appellant challenges his sentence:
[Appellant]’s sentence was manifestly excessive, unreasonable,
and an abuse of discretion. It was not consistent with the norms
underlying the sentencing code and failed to consider all relevant
factors including the nature and characteristics of the defendant,
and his rehabilitative needs. Instead, the [trial c]ourt focused
exclusively on the seriousness of the offense to the exclusion of
other pertinent factors.
Appellant’s Brief at 47-48.
Before we reach the merits of Appellant’s claim, we must decide
whether to exercise our discretion to consider this appeal of the
discretionary aspects of a sentence, which we will do only if: (1) the
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appellant has filed a timely notice of appeal; (2) he has preserved the
sentencing issue at the time of sentencing or in a motion to reconsider and
modify his sentence; (3) he presents the issue in a properly framed
statement in his brief under Rule 2119(f) of the Rules of Appellate
Procedure, pursuant to Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.
1987); and (4) in the words of Section 9781(b) of the Sentencing Code, 42
Pa.C.S. § 9781(b), “it appears that there is a substantial question that the
sentence imposed is not appropriate under this chapter.” See, e.g.,
Commonwealth v. Haynes, 125 A.3d 800, 807 (Pa. Super. 2015), appeal
denied, 140 A.3d 12 (Pa. 2016); Commonwealth v. Zelinski, 573 A.2d
569, 574-75 (Pa. Super.), appeal denied, 593 A.2d 419 (Pa. 1990).
As noted above, on April 9, 2015, Appellant filed a timely notice of
appeal to this Court. He also raised a challenge to the discretionary aspects
of his sentence in his post-sentence motions and an Appellate Rule 1925(b)
statement, and he has included a concise statement of the reasons relied
upon for allowance of an appeal in his brief. See Appellant’s Brief at 19-22.
We therefore must determine whether his appeal presents a substantial
question regarding his sentence. In that connection:
A defendant presents a substantial question when he sets forth a
plausible argument that the sentence violates a provision of the
Sentencing Code or is contrary to the fundamental norms of the
sentencing process. . . . The Sentencing Code prescribes
individualized sentencing by requiring the sentencing court to
consider the protection of the public, the gravity of the offense in
relation to its impact on the victim and the community, and the
rehabilitative needs of the defendant[.]
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Commonwealth v. Luketic, 162 A.3d 1149, 1160-61 (Pa. Super. 2017)
(brackets, quotation marks, footnote, and citations omitted).
Here, the trial court concluded that Appellant failed to raise a
substantial question. See Trial Ct. Op. at 13; Luketic, 162 A.3d at 1160-
61; Haynes, 125 A.3d at 807; Zelinski, 573 A.2d at 574-75. We disagree,
as does the Commonwealth. Commonwealth’s Brief at 40-41. In his
Appellate Rule 1925(b) statement, at Paragraph G, Appellant claimed that
his sentence “was not consistent with the norms underlying the sentencing
code.” Cf. Luketic, 162 A.3d at 1160-61. He also contends that his
sentence “was manifestly excessive [and] unreasonable.” See Post-
sentence Motions, 3/6/15, at 4; Appellate Rule 1925(b) Statement ¶ G. “A
claim that a sentence is manifestly excessive such that it constitutes too
severe a punishment raises a substantial question.” Commonwealth v.
Derry, 150 A.3d 987, 995 (Pa. Super. 2016) (citation and quotation marks
omitted). In addition, Appellant argues in his Rule 2119(f) statement that
“[t]he sentence imposed . . . failed to consider all relevant factors including
the nature and characteristics of the defendant, and his rehabilitative
needs.” Appellant’s Brief at 20. An allegation that the sentencing court
failed to consider an appellant’s rehabilitative needs constitutes a substantial
question, when presented in conjunction with other relevant factors. See,
e.g., Luketic, 162 A.3d at 1160-61; Commonwealth v. Swope, 123 A.3d
333, 340 (Pa. Super. 2015) (claim that failure to consider rehabilitative
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needs and mitigating factors raised a substantial question);
Commonwealth v. Dodge, 77 A.3d 1263, 1273 (Pa. Super. 2013) (claim
that sentencing court disregarded rehabilitation and the nature and
circumstances of the offense raised a substantial question), appeal denied,
91 A.3d 161 (Pa. 2014); Commonwealth v. Hill, 66 A.3d 365 (Pa. Super.
2013) (claim that sentence was inconsistent with the protection of the public
and with appellant’s rehabilitative needs raised a substantial question). We
therefore conclude that Appellant has raised a substantial question.
We apply the following standard of review:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In order to establish that
the sentencing court abused its discretion, the defendant must
establish, by reference to the record, that the sentencing court
ignored or misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias or ill will, or arrived at a
manifestly unreasonable decision.
Luketic, 162 A.3d at 1162-63 (brackets, quotation marks, and citations
omitted).
The Sentencing Code, 42 Pa.C.S. § 9721(b), provides that a court
should impose a sentence of confinement that is “consistent with the
protection of the public, the gravity of the offense as it relates to the impact
on the life of the victim and on the community, and the rehabilitative needs
of the defendant.” See Commonwealth. v. Walls, 926 A.2d 957, 962 (Pa.
2007). During Appellant’s sentencing hearing, the trial court asserted, “I do
not find anything in particular that would mitigate or anything necessarily
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that would aggravate the factors already taken into consideration in the
guideline form. . . . I impose a standard range sentence[.]” N.T., 2/24/15,
at 19-20. In its opinion, the trial court further explained that its sentence
was based on the fact that:
Although Appellant was charged with two counts of Possession of
Child Pornography, the testimony elicited indicated hundreds,
perhaps thousands of images of child pornography, representing
a vast pool of child victims. Appellant’s probationary status from
1994 to sentencing strongly suggests that Appellant is a poor
candidate for community supervision. If anything, th[e trial
c]ourt would have been justified in imposing a significantly
longer sentence.
Trial Ct. Op. at 14.
Thus, the record indicates that the trial court considered the gravity of
the offense, inasmuch as it considered that, even though the court could
only sentence Appellant on two counts, he actually had possessed hundreds
of images of child pornography. See 42 Pa.C.S. § 9721(b); Walls, 926 A.2d
at 962; Trial Ct. Op. at 14. The trial court also reflected upon the impact on
the victims, noting that “a vast pool of child victims” was involved. See 42
Pa.C.S. § 9721(b); Walls, 926 A.2d at 962; Trial Ct. Op. at 14. It further
considered the impact upon the community, noting that “Appellant is a poor
candidate for community supervision.” See 42 Pa.C.S. § 9721(b); Walls,
926 A.2d at 962; Trial Ct. Op. at 14. It likewise considered Appellant’s
rehabilitative needs by noting that Appellant had been on probation for other
offenses from 1994 until sentencing, indicating that previous attempts at
rehabilitation had failed. See 42 Pa.C.S. § 9721(b); Walls, 926 A.2d at
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962; Trial Ct. Op. at 14. Finally, because the trial court sentenced Appellant
in the standard range, finding no aggravating factors, the sentence was not
excessive and was consistent with the norms of the Sentencing Code. Id.
We therefore discern no abuse of discretion or error of law in the sentence
imposed by the trial court.
Judgment of sentence affirmed.
Judge Ransom joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/2017
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