Com. v. Bowman, K. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
KENSIL WAYNE BOWMAN, JR. :
:
Appellant : No. 296 WDA 2020
Appeal from the Judgment of Sentence Entered January 6, 2020,
in the Court of Common Pleas of Blair County,
Criminal Division at No(s): CP-07-CR-0001489-2015.
BEFORE: STABILE, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: August 2, 2021
Kensil Bowman, Jr. appeals from the judgment of sentence imposing an
aggregate term of 22 to 44 months of incarceration, followed by ten years of
probation and 25 years of sex-offender registration. The trial court convicted
Bowman of distributing child pornography, possessing child pornography, and
criminal use of a communication facility (i.e., his home computer). We affirm.
In 2011, law enforcement became interested in Bowman’s computer,
located inside his Altoona home, for possibly sharing child pornography with
other Internet users. Bowman facilitated these exchanges through a peer-to-
peer software known as eDonkey 2000 (“eD2k”) and eMule. Those programs
allow users to make the files on their devices (including images and videos)
available for other eD2k and eMule users for download. Child pornographers
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* Retired Senior Judge assigned to the Superior Court.
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use common file names to identify their illicit material to each other, such as
“preteen,” “pedo,” and “PTHC.” N.T., 9/9/20, at 21-22. The letters “PTHC”
are an anacronym for “pre-teen hardcore.” Id.
By labeling his files in this way and making them eD2K/eMule accessible,
Bowman created a virtual library of child pornography. He then opened his
virtual library to other peer-to-peer-software users throughout the world and
invited them to copy his files onto their own devices.
A special investigative unit with the Office of the Attorney General of
Pennsylvania accessed Bowman’s child-pornography library via the Internet.
Over the course of two days in March 2015, agents downloaded five pictures
of nude children, three depicting them engaged in sexual acts, directly from
Bowman’s computer. See Commonwealth’s Trial Ex. 1B. The investigators’
software provided them with an IP Address. They then subpoenaed Verizon
Wireless to obtain the identity of the IP Address’s owner. Verizon identified
Bowman as the Internet user associated with that IP Address and gave police
his home address.
Next, the agents obtained a search warrant for Bowman’s home. Their
warrant was for the seizure of all Internet-ready devices, any items that might
store child pornography (such as USB drives), and any hardcopies of child
pornography. When they executed the warrant, Bowman was home. His
computer was on and actively downloading files that were immediately
apparent as child pornography.
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After warning Bowman pursuant to Miranda v. Arizona, 384 U.S. 436(1966), agents interrogated him. Bowman told them that he used the peer-
to-peer software to download child pornography while downloading other files
such as music, that he printed out images of child pornography, and that he
lived alone. Law enforcement arrested Bowman. They also seized numerous
items from his home, including his computer, data-storage devices, and over
40 printouts of naked children from a locked bathroom in his basement.
Bowman moved to suppress the Commonwealth’s evidence seized under
the search warrant and his statements during the interrogation. The trial court
denied his motions, and the matter proceeded to a bench trial. The court
convicted and sentenced Bowman as described above. This timely appeal
followed.
On appeal, Bowman raises three issues, which we reorder below in light
of this Court’s practice of addressing sufficiency-of-the-evidence claims first
in criminal matters:1
1. Whether the trial court erred in determining there was
sufficient evidence to convict [Bowman] of the
offenses as charged [because the Commonwealth]
failed to prove beyond a reasonable doubt that
[Bowman] was the individual who actually
downloaded the alleged images of child pornography
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1 See Commonwealth v. Toritto, 67 A.3d 29, 33 (Pa. Super. 2013) (en
banc) (citing dicta from Commonwealth v. Stokes, 38 A.3d 846 (Pa. Super.
2011) and elevating it into a “best practice” by stating, “Because a successful
sufficiency-of-the-evidence claim warrants discharge on the pertinent crime,
we must address this issue first.”).
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and that such alleged images of child pornography
qualified as child pornography?
2. Whether the trial court erred in denying [Bowman’s]
motion to suppress search warrant, as the affidavit of
probable cause failed to state adequate probable
cause with its four-corners, and, contrary to the law,
the trial court considered evidence outside the four-
corners in determining probable cause?
3. Whether the trial court erred in denying [Bowman’s]
motion to suppress search warrant, as the evidence
at the suppression hearings showed [Bowman’s]
statement to be involuntary under the totality of the
circumstances and the [Commonwealth] did not
satisfy its burden of proof relating to such motion?
Bowman’s Brief at 5.
First, Bowman contends there was insufficient evidence to convict him
of the charged offenses. He believes the Commonwealth failed to prove
beyond a reasonable doubt that (1) he was the person who downloaded the
images and videos and (2) those images and videos were child pornography.
Regarding Bowman’s first point, he relies exclusively on his testimony
during the defense’s case-in-chief. Bowman testified that he had downloaded
music and images in bulk from other eD2k and eMule users without checking
to see what types of files he was actually downloading. He also said he printed
out large quantities of images for album covers, in an attempt to explain the
over 40 pictures of child pornography in his locked, basement bathroom. In
other words, he asks this Court to accept his version of events to excuse the
presence of the child pornography within his home, on his computer, and in
his other storage devices as mere repeated accidents.
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For a sufficiency-of-the-evidence claim, “our standard of review is de
novo; however, our scope of review is limited to considering the evidence of
record, and all reasonable inferences arising therefrom, viewed in the light
most favorable to the Commonwealth as the verdict winner.”
Commonwealth v. Rushing, 99 A.3d 416, 420–21 (Pa. 2014).
In Pennsylvania, it is a crime when someone “knowingly . . . distributes
. . . to others, any . . . computer depiction . . . depicting a child under the age
of 18 years engaging in a prohibited sexual act or in the simulation of such
act.” 18 Pa.C.S.A. §6312(c). It is also a crime if one “intentionally views or
knowingly possesses or controls any . . . photograph, film, videotape,
computer depiction . . . depicting a child under the age of 18 years engaging
in a prohibited sexual act or in the simulation of such act . . . .” 18 Pa.C.S.A.
§ 6312(d).
Additionally, a person may not use “a communication facility to commit
. . . any crime which constitutes a felony under this title.” 18 Pa.C.S.A.
§7512(a). A “communication facility” is an “instrumentality used or useful in
the transmission of signs, signals, writing, images, sounds, data, or
intelligence of any nature transmitted, in whole or in part, including, but not
limited to, telephone, wire, radio, electromagnetic, photoelectronic, or photo-
optical systems or the mail.” 18 Pa.C.S.A. § 7512(c). Thus, an Internet-ready
device, such as Bowman’s home computer, is a “communication facility.”
Limiting our review, as we must, to the evidence most favorable to the
Commonwealth, Bowman’s own admissions convict him of the above offenses.
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During the interrogation by the special agents, Bowman confessed to living
alone and to downloading child pornography. He also admitted to searching
for “PTHC.”
The trial court, sitting as the finder of fact, was “free to believe all, part,
or none of the evidence and to determine the credibility of the witnesses.”
Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011) (citation
omitted). Thus, the trial court, as sole judge of the facts, could – and did –
reject the revisionist theory of events that Bowman told on the witness stand
in his own defense. Instead, the trial court found his first rendition to the
agents during his interrogation to be the accurate story of this case.
As the appellate court, we did not hear the testimony and therefore may
not revisit the trial court’s credibility determinations. See Ramtahal, supra.
Bowman’s retelling of events in his appellate brief – in the light most favorable
to himself – is irrelevant on this appeal, because his self-serving review of the
record is outside our scope of review. See Rushing, supra. The trial court
has conclusively deemed his version of events to be false. Thus, Bowman, by
relying exclusively upon those untruths (rather than identify any deficiencies
in the Commonwealth’s case-in-chief), fails to persuade us that there was
insufficient evidence from which the trial court could find beyond a reasonable
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doubt that Bowman knowingly downloaded child pornography and knowingly
possessed it within his home.2
Accordingly, this first issue warrants no relief.
Next, Bowman claims the trial court should have suppressed the child
pornography. The Commonwealth argues that this claim is waived due to the
lack of meaningful development in Bowman’s brief. See Commonwealth’s
Brief at 6. We agree with the Commonwealth.
“The applicability of waiver principles presents a question of law, over
which our standard of review is de novo, and our scope of review is plenary.”
Stapas v. Giant Eagle, Inc., 198 A.3d 1033, 1037 (Pa. 2018).
This Court has said, “When an appellant’s argument is underdeveloped,
we may not supply [him] with a better one. In such situations, we shall not
develop an argument for an appellant, nor shall we scour the record to find
evidence to support an argument; instead, we will deem the issue to be
waived.” Commonwealth v. Pi Delta Psi, Inc., 211 A.3d 875, 884–85 (Pa.
Super. 2019), appeal denied, 221 A.3d 644 (Pa. 2019) (quotation marks and
some punctuation omitted).
Bowman makes no argument to support his claim that the nine-page
affidavit in support of the search warrant lacked probable cause. See
Bowman’s Brief at 11. He simply states that he “disagrees with the trial court’s
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2 Regarding his second point – i.e., that the images and videos are not child
pornography – Bowman makes no argument at all. See id. at 14-15. We
therefore dispose of Bowman’s second point as waived. See Pa.R.A.P. 2111,
2119.
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determination that there was adequate probable cause within the four-corners
of the affidavit.” Id. This conclusory statement is insufficient to prompt any
further consideration by this Court. We dismiss Bowman’s four-corners
challenge to the search warrant as waived.
Finally, Bowman seeks the suppression of his post-Miranda-warnings,
inculpatory statements to investigators during the search of his home. Again,
the Commonwealth argues for waiver due to lack of development of this claim
in Bowman’s brief. See Commonwealth’s Brief at 11. Again, we agree.
Bowman claims that, “under the totality of the circumstances, [his]
statements were involuntary.” Id. at 12. He says he never received a copy
of the search warrant and was therefore “in shock at the line of questioning
throughout the interview.” Id. Finally, Bowman states, due to “his state of
shock, duress, and lack of understanding of what was happening, given his
repeated demands to see documentation, his statements were not voluntary.”
Id. at 13. He does not explain why he was in shock or under duress, and
nothing in the record indicates that the suppression court made such findings
of fact.
Also, absent from his argument is any citation to or reliance upon any
Fifth Amendment3 jurisprudence that supports his unsubstantiated claims of
shock or duress. Indeed, this section of Bowman’s argument is devoid of any
authority, other then two citations regarding the Commonwealth’s burden of
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3 The Fifth Amendment provides, “No person shall . . . be compelled in any
criminal case to be a witness against himself . . . .” U.S. Const. amnd. V.
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proof at suppression hearings. See id. at 11-13. This argument therefore
lacks citation to any substantive law, whatsoever.
The Rules of Appellate Procedure require an appellant to include in the
argument sections of his brief “such discussion and citation of authorities
as are deemed pertinent.” Pa.R.A.P. 2119(a) (emphasis added). “Where an
appellant has failed to cite any authority in support of a contention, the claim
is waived.” Collins v. Cooper, 746 A.2d 615, 619 (Pa. Super. 2000). The
lack of citation to substantive law in Bowman’s brief is fatal to this issue.
Bowman’s argument for the suppression of his inculpating statements
is underdeveloped and violates Pa.R.A.P. 2119(a). Therefore, he waived his
last appellate issue, as well. See Pi Delta Psi, Inc. and Cooper, supra.Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/2/2021
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