Com. v. Moyer, Jr., R.

J-S94014-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICHARD EUGENE MOYER, JR.
Appellant No. 742 MDA 2016
Appeal from the Judgment of Sentence March 4, 2016
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0004588-2014
BEFORE: LAZARUS, J., RANSOM, J., and FITZGERALD, J.*
MEMORANDUM BY LAZARUS, J.: FILED MARCH 01, 2017
Richard Eugene Moyer, Jr., appeals from the judgment of sentence
entered in the Court of Common Pleas of Lancaster County after a jury
convicted him of fifteen counts of possession of child pornography1 and one
count each of distribution of child pornography2 and criminal use of a
communication facility.3 Upon careful review, we affirm Moyer’s convictions
and amend his sentencing and SORNA registration orders.
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. § 6312(d).
2
18 Pa.C.S.A. § 6312(c).
3
18 Pa.C.S.A. § 7512.
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In May 2014, Special Agent Daniel Hasenauer of the Pennsylvania
Office of Attorney General conducted an internet-based investigation of child
exploitation in which he attempted to locate computer users who had
downloaded and/or distributed child pornography. During the course of this
investigation, Agent Hasenauer made a direct connection with Moyer’s
computer and downloaded a file containing child pornography. As a result,
authorities obtained a search warrant to search Moyer’s home for child
pornography. Armed with the warrant, officials seized Moyer’s computer. A
forensic examination revealed images Hasenauer believed to be child
pornography, as they had graphic titles indicating pornographic depiction of
“preteens” between the ages of 3 and 12.
Moyer, who resided in the basement of the residence belonging to his
parents, was present during the execution of the warrant and agreed to
speak with authorities. At first, Moyer denied that there was child
pornography present on his computer. However, he subsequently told
agents that he occasionally came across it when downloading files, but he
always deleted it immediately. He also admitted using the search term
“teen” to “get the files that [he] like[s] to see[.]” Trial Exhibit 10-A,
Transcript of Moyer Interview, at 12.
After the interview was concluded, Moyer was arrested. On the drive
to the police station, Moyer told Agent Hasenauer that “he was targeting
[the] 13, 14, 15-year old age group” and that it was not illegal to download
child pornography as long as he deleted it. N.T. Trial, 12/2/15, at 138.
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At trial, Special Agent David Middendorf, an expert in forensic
computer analysis, testified that, on scene at Moyer’s residence, he initially
determined that Moyer’s computer contained at least 13 images and one
video of apparent child pornography. He later examined the computer and
found it contained 17 images and three videos, which had been deleted and
were in the computer’s recycling bin.
Moyer testified and stated that he was in the business of refurbishing
computers and had purchased this particular computer at a yard sale; he
had added a second hard drive that he had purchased years before that. He
claimed that there was a “mix of adult and child pornography” on the hard
drive when he purchased it, but that he had deleted all of it. N.T. Trial,
12/3/15, at 216. He further testified that he had subsequently “stumbled
across” another pornographic file, which led to the discovery of additional
files, all of which he claimed to have deleted. Id. at 220. Moyer claims he
never intentionally made any of the files available for sharing on Shareaza,
the file-sharing network he utilized.
On December 3, 2015, a jury found Moyer guilty of the above charges.
On March 4, 2016, the court sentenced him to an aggregate term of five to
15 years’ imprisonment. Moyer was also ordered to register as a sex
offender for life pursuant to the Sex Offender Registration and Notification
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Act (“SORNA”).4 Moyer’s post-sentence motions were denied. On May 6,
2016, he filed a timely notice of appeal to this Court, followed by a court-
ordered concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b).
On appeal, Moyer raises the following issues for our review:
1. Was the evidence presented by the Commonwealth
insufficient to sustain [Moyer’s] conviction[s] for [c]ounts 2, 8,
9, 11, and 16?
2. Were the sentences imposed on [c]ounts 1 through 7, of two
and one-half to eight years[’] incarceration, illegal, as the
statutory maximum sentence for a third[-]degree felony is seven
years’ incarceration?
3. Where [Moyer] was convicted on the same date of one count
of distribution of child pornography . . . and fifteen counts of
possession of child pornography . . . and all offenses were
docketed to the same information number, should he have been
sentenced to 25 years of sex[-]offender registration pursuant to
42 Pa.C.S. §§ 9799.14 and 9799.15, rather than lifetime
registration?
Brief of Appellant, at 6.
Moyer challenges the sufficiency of the evidence as to five of his
convictions. We are guided by the following standard of review when
presented with a challenge to the sufficiency of the evidence:
As a general matter, our standard of review of sufficiency claims
requires that we evaluate the record in the light most favorable
to the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence. Evidence
will be deemed sufficient to support the verdict when it
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4
42 Pa.C.S.A. §§ 9799.10-9799.41.
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establishes each material element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. Any doubt about the defendant’s guilt is
to be resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of fact
can be drawn from the combined circumstances.
The Commonwealth may sustain its burden by means of wholly
circumstantial evidence. Accordingly, the fact that the evidence
establishing a defendant’s participation in a crime is
circumstantial does not preclude a conviction where the evidence
coupled with the reasonable inferences drawn therefrom
overcomes the presumption of innocence. Significantly, we may
not substitute our judgment for that of the fact finder; thus, so
long as the evidence adduced, accepted in the light most
favorable to the Commonwealth, demonstrates the respective
elements of a defendant’s crimes beyond a reasonable doubt,
the appellant’s convictions will be upheld.
Commonwealth v. Franklin, 69 A.3d 719, 722–23 (Pa. Super. 2013),
quoting Commonwealth v. Pettyjohn, 64 A.3d 1072 (Pa. Super. 2013)
(citations and quotation marks omitted).
Moyer was convicted under section 6312 of the Crimes Code, which
provides that “[a]ny person who 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 commits an offense.” 18 Pa.C.S.A. § 6312.
Moyer first challenges his conviction as to count 16, on the basis that it
was not possible for the jury to determine whether the female depicted in
the photo was under the age of 18. Moyer asserts that:
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[T]he image associated with [c]ount 16, involves a female who is
not facing the camera, and whose face cannot be seen. While
there is no question that she is engaged in sexual contact with
an adult male, there is simply no way to determine, based on
the photograph, that the female’s age is under 18. The
Commonwealth did not present any expert testimony regarding
the age of the alleged children in any of the photographs.
Brief of Appellant, at 13. Moyer cites to subsection (e) of section 6312,
which provides that “[i]n the event a person involved in a prohibited sexual
act is alleged to be a child under the age of 18 years, competent expert
testimony shall be sufficient to establish the age of said person.” 18
Pa.C.S.A. § 6312(e) (emphasis added). Moyer asserts that, without expert
testimony, there was insufficient evidence for the jury to determine the
female was under the age of 18. There is no merit to this claim.
In its Rule 1925(a) opinion, the trial court concludes that
[Moyer] provides no compelling reason to disturb any of his
convictions. The age of the individual depicted in the image
associated with count 16 is not so obviously 18 or older as to
warrant reversing the jury’s finding. Far from it, in fact, as the
jury could very reasonably find the age element proven with
regard to this image. This is particularly true when one
considers the title associated with the image, which includes the
terms “Pedo” and “Childporn.”
Trial Court Opinion, 7/6/16, at 8 (citations to record omitted).
We agree with the trial court’s rationale. As this court has previously
noted with regard to an identical claim:
Proof of age, like proof of any other material fact, can be
accomplished by the use of either direct or circumstantial
evidence, or both. The proof necessary to satisfy the element of
age in a dissemination or possession of child pornography case is
not limited to expert opinion testimony. Subsection (e) merely
allows that if competent expert testimony is presented it shall be
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sufficient to establish the age element of the crime. This
subsection does not mandate such proof in order to sustain a
conviction. Rather, the outward physical appearance of an
alleged minor may be considered by the trier of fact in judging
the alleged minor’s age.
Commonwealth v. Robertson-Dewar, 829 A.2d 1207, 1212 (Pa. Super.
2003) (emphasis added). Here, the jury, based on everyday observations
and common life experiences as well as the file name of the image, 5
assessed the age of the female depicted in the photo associated with count
16 and concluded, beyond a reasonable doubt, that she was under the age
of 18. We see no reason to disturb the jury’s finding.
Moyer next challenges his convictions as to counts 2, 8, 9 and 11,
asserting that there was insufficient evidence that the related images
depicted a child engaging in a prohibited sexual act6 or simulation of such an
act. Moyer claims that the images are neither titillating nor provocative and
thus, the determination that the photos were taken for the purpose of sexual
stimulation or gratification “could only have been pure speculation on the
part of the jury.” Brief of Appellant, at 17. Moyer cites Commonwealth v.
Savich, 716 A.2d 1251 (Pa. Super. 1998), and Commonwealth v. Tiffany,
926 A.2d 503 (Pa. Super. 2007), two cases in which this Court found that
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5
The image was titled “PTHC pedo NEW Childporn Private Daughter Torpedo
Ranchi loli.” N.T. Trial, 12/2/15, at 118.
6
Section 6312(g) of the Crimes Code defines “prohibited sexual act” to
include “lewd exhibition of the genitals or nudity if such nudity is depicted for
the purpose of sexual stimulation or gratification of any person who might
view such depiction.” 18 Pa.C.S.A. § 6312(g).
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pictures were taken for the purpose of sexual gratification or stimulation,
and attempts to distinguish them. Specifically, Moyer argues that, unlike in
those cases, here “nothing is known about the photographers who took the
pictures[.] There is no indication that the pictures were taken surreptitiously
or without the knowledge of the children photographed, and there is nothing
particularly sexualized or provocative about the pictures.” Brief of Appellant,
at 17. We disagree.
In concluding that the Commonwealth presented sufficient evidence to
support Moyer’s convictions as to the counts in question, the trial court
found as follows:
As for counts 2, 8, 9, and 11, the related images may not depict
“sexual acts” in the usual sense of the words. But the child
pornography statute defines “prohibited sexual act” to include
“lewd exhibition of the genitals or nudity if such nudity is
depicted for the purpose of sexual stimulation or gratification of
any person who might view such depiction.” [18] Pa.C.S.A. §
6312(g). These images qualify, as it is surely a reasonable
inference from the evidence that the nudity depicted in these
images was intended for these purposes. And once again, the
titles of the images . . . further refute [Moyer’s] position.
Trial Court Opinion, 7/6/16, at 9 (citations to record omitted).
A review of the images in question, which all depict nude minors in
various poses, supports the trial court’s conclusion. The image associated
with count 2, named “lolitaguy mafiasex.RU_children_kids_hard_00293 child
porn,” see N.T. Trial, 12/2/15, at 115, depicts a nude boy posing in what
can only be described as a provocative manner outside of a bathroom. The
image associated with count 8, entitled “Carl David Hyman, Jr., Children
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pussy 106 – 3 year old witch nudist,” id. at 116, depicts a group of nude
children, male and female, posing with what appear to be a flowing white
curtain and a bamboo window blind. The image associated with count 9,
named “Carl David Hyman, Jr., Kiddie Pussy 06 – witch pedo pthc nudist,”
id., shows a nude female child with the arm of an adult male appearing to
restrain her in the upper chest area. Notably, the photograph is framed
such that the face of the adult male is not included in the image. Finally, the
image associated with count 11, titled “Jailbait 033 – Jana Young Girls in
Thongs showing off,” id. at 117, depicts an adolescent female with her hand
on her hip, leaning provocatively toward the camera, such that her breasts
are emphasized in the photograph.
Here, again, the jury used its life experience and common sense to
conclude that these images of nude children and adolescents were taken for
the purpose of sexual stimulation or gratification. Furthermore, the file
names associated with each image, while not necessarily descriptive of the
content of the photos themselves, clearly indicated an intent that the photos
be obtained and used for the purposes of sexual gratification by the viewer.
Accordingly, Moyer’s convictions as to these counts must be affirmed.
Next, Moyer challenges the legality of his sentences as to counts one
through seven. Specifically, the trial court imposed sentences of 2½ to 8
years’ imprisonment on each count, all of which were graded as felonies of
the third degree. The statutory maximum penalty for third-degree felonies
is seven years. See 18 Pa.C.S.A. § 1103(3) (sentence for felony of third
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degree may not exceed seven years’ imprisonment). The Commonwealth
agrees with Moyer’s position, and the trial court has requested that we
directly vacate the illegal portion of Moyer’s sentence without remanding for
resentencing, as only the maximum sentence is affected and the court’s
overall sentencing scheme is not disturbed. “Where it is determined that a
sentence is illegal, we may remand for resentencing or vacate and amend
the invalid sentence directly.” Commonwealth v. Huckleberry, 631 A.2d
1329, 1334 (Pa. Super. 1993). Accordingly, because the overall sentencing
scheme is unaffected by the illegality present here, we will amend Moyer’s
sentence directly without remanding to the trial court.
Finally, Moyer challenges the trial court’s imposition of a lifetime
registration requirement pursuant to SORNA. Moyer was convicted for a
violation of section 6312(c), which carries a registration requirement of
twenty-five years, as well as multiple convictions under section 6312(d),
which each require that he register for a period of 15 years. At sentencing,
the court imposed lifetime registration as a Tier III offender based on its
finding that Moyer had committed two or more Tier I or II offenses. See 42
Pa.C.S.A. § 9799.14(d)(16) (registration as Tier III offender required where
defendant has two or more convictions for offenses listed as Tier I or Tier II
offenses). In doing so, the court relied upon this Court’s decision in
Commonwealth v. Merolla, 909 A.2d 337 (Pa. Super. 2006), in which we
applied the Megan’s Law II-era precursor to section 9700.14(d)(16) and held
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that multiple convictions, even when arising from a single course of conduct
and prosecution, mandate lifetime registration.
Subsequent to the imposition of Moyer’s sentence, our Supreme Court
decided Commonwealth v. Lutz-Morrison, 143 A.3d 891 (Pa. 2016), in
which the Court held that section 9799.14(d)(16) of SORNA may not be
applied to a defendant whose two or more qualifying Tier I or II convictions
arose from a single course of conduct and resulted from a single
prosecution. In so holding, the court noted that SORNA encompasses a
recidivist philosophy and, as such, requires an act, a conviction, and a
subsequent act to trigger lifetime registration for multiple offenses otherwise
subject to a fifteen- or twenty-five-year period of registration. Id. at 895.
The Commonwealth concedes that, pursuant to Lutz, Moyer’s
registration order must be vacated or amended to reflect the appropriate 25-
year registration requirement.7 Accordingly, as we did with his illegal
sentence, we will amend Moyer’s registration order as required by Lutz.
Convictions affirmed; judgments of sentence affirmed as to counts
eight through sixteen; judgments of sentence as to counts one through
seven amended to reflect the correct statutory maximum sentence of seven
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7
The trial court issued its opinion prior to the Supreme Court’s decision in
Lutz and, thus, continued to rely on Merolla. However, the court
acknowledged the pendency of Lutz, noting that “unless and until Lutz-
Morrison and [its companion case] A.S. hold otherwise, [Moyer] is subject
to lifetime registration.” Trial Court Opinion, 7/6/16, at 10.
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years; SORNA registration order amended to reflect 25-year registration
requirement. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/1/2017
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