Commonwealth v. Colon-Plaza

J-S14038-16

2016 PA Super 50

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

HECTOR COLON-PLAZA,

Appellant No. 1159 MDA 2015

Appeal from the Judgment of Sentence June 3, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0002452-2014

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED FEBRUARY 25, 2016

Hector Colon-Plaza (“Appellant”) appeals from the twenty-five to fifty

year judgment of sentence imposed under the mandatory minimum

sentencing scheme for recidivist sexual offenses at 42 Pa.C.S.A. § 9718.2.1
____________________________________________

1
The Sentencing Code, 42 Pa.C.S. §§ 9701–9799.9, at Section 9718.2
(Sentences for sex offenders), provides for a mandatory minimum and
maximum sentence as follows in pertinent part:

§ 9718.2. Sentences for sexual offenders

(a) Mandatory sentence.--
(1) Any person who is convicted in any court of this
Commonwealth of an offense set forth in section 9799.14
(relating to sexual offenses and tier system) shall, if at the time
of the commission of the current offense the person had
previously been convicted of an offense set forth in section
9799.14 or an equivalent crime under the laws of this
Commonwealth in effect at the time of the commission of that
offense or an equivalent crime in another jurisdiction, be
sentenced to a minimum sentence of at least 25 years of total
(Footnote Continued Next Page)

*Former Justice specially assigned to the Superior Court.
J-S14038-16

Specifically, he raises sufficiency and weight of the evidence challenges to

guilty verdicts on four counts of Sexual Abuse of Children, Child

Pornography2 and one count of Criminal Use of a Communication Facility,3

asserts a lack of due notice regarding the Commonwealth’s intent to seek a

_______________________
(Footnote Continued)

confinement, notwithstanding any other provision of this title or
other statute to the contrary. Upon such conviction, the court
shall give the person oral and written notice of the penalties
under paragraph (2) for a third conviction. Failure to provide
such notice shall not render the offender ineligible to be
sentenced under paragraph (2).
(2) Where the person had at the time of the commission of the
current offense previously been convicted of two or more
offenses arising from separate criminal transactions set forth in
section 9799.14 or equivalent crimes under the laws of this
Commonwealth in effect at the time of the commission of the
offense or equivalent crimes in another jurisdiction, the person
shall be sentenced to a term of life imprisonment,
notwithstanding any other provision of this title or other statute
to the contrary. Proof that the offender received notice of or
otherwise knew or should have known of the penalties under this
paragraph shall not be required.
(b) Mandatory maximum.--An offender sentenced to a
mandatory minimum sentence under this section shall be
sentenced to a maximum sentence equal to twice the mandatory
minimum sentence, notwithstanding 18 Pa.C.S. § 1103 (relating
to sentence of imprisonment for felony) or any other provision of
this title or other statute to the contrary.
(c) Proof of sentencing.--The provisions of this section shall
not be an element of the crime, and notice thereof to the
defendant shall not be required prior to conviction, but
reasonable notice of the Commonwealth's intention to proceed
under this section shall be provided after conviction and before
sentencing. . . .
42 Pa.C.S. § 9718.2.
2
18 Pa.C.S. § 6312(d).
3
18 Pa.C.S. § 7512.

-2-
J-S14038-16

mandatory minimum sentence, and claims his mandatory sentence violates

federal and state constitutional prohibitions against cruel and unusual

punishments. We affirm.

In 2010, Appellant pled guilty to two counts of indecent assault of a

minor and received two years’ probation, which he completed. On April 17,

2014, the Pennsylvania Office of Attorney General (“OAG”) obtained a search

warrant for Appellant’s residence on evidence that OAG law enforcement

software enabling agents to detect the location of computers offering child

pornography for download had twice during a four-month period downloaded

videos and images of child pornography offered from an internet-based,

peer-to-peer file-sharing program4 in use at Appellant’s residence. Pursuant

to a court order, Comcast Cable Communications supplied account

information naming Appellant as the wireless internet subscriber.

Authorities further determined that wireless internet access from this

address was locked and required a password.

Appellant shared the residence with his girlfriend, Angela Gonzalez,

and she was home when authorities executed the search warrant. OAG

agents confiscated a non-functioning digital tablet, three cell phones, and

two laptop computers, one of which was stored in a hallway closet. It was
____________________________________________

4
The internet-based, peer-to-peer program in this case, Ares, is available
online as a free, downloadable program enabling a user to place files in and
retrieve and download files from a shared folder accessible to other Ares
users.

-3-
J-S14038-16

this HP laptop, alone, which contained an Ares file-sharing program, and

within this program were files containing the two videos and two images of

child pornography captured by the OAG computer. Further examination of

the laptop disclosed a username of “HECTOR,” a most recent log-on under

this username of April 16, 2014, just one day before service of the warrant,

and placement of the child pornography files in a file path under this

username. N.T. Trial, 3/3/15, at 205-08.

OAG agents obtained Appellant’s work address from Ms. Gonzalez and

interviewed him at his office after advising him of his Miranda5 rights, which

he temporarily waived. In his recorded statement, Appellant admitted that

he and Ms. Gonzalez kept two computers and one digital tablet in the

residence and knew each other’s passwords. He denied recent use of the HP

laptop computer stored in the hall closet, although he admitted to knowing

its password and using it in the past to share music and video files.

Authorities arrested Appellant and charged him with two counts of

disseminating child pornography6 in addition to the charges referenced

above. On March 4, 2015, a jury found Appellant not guilty of disseminating

child pornography but guilty on all counts of possession of child pornography

and criminal use of communication facilities. Prior to sentencing, the

Commonwealth notified Appellant that it would seek a mandatory minimum
____________________________________________

5
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).
6
18 Pa.C.S.A. § 6312(c).

-4-
J-S14038-16

sentence of 25 years under section 9718.2, supra, a recidivist statute

addressing sexual offenders. At Appellant’s sentencing hearing, the court

noted that a Sexual Offenders Assessment Board determined Appellant was

not a sexually violent predator. Nevertheless, finding Appellant was a

recidivist sex offender as contemplated under the mandatory minimum

sentencing scheme, the court imposed a mandatory 25 to 50-year term of

incarceration. This timely appeal followed.

Appellant raises the following questions for our review:

I. DID THE COMMONWEALTH PROVIDE INSUFFICIENT
EVIDENCE AS A MATTER OF LAW TO ESTABLISH
[APPELLANT’S] GUILT BEYOND A REASONABLE
DOUBT ON THE CHARGES OF SEXUAL ABUSE OF
CHILDREN[,] POSSESSION OF CHILD PORNOGRAPHY
AND CRIMINAL USE OF A COMMUNICATION
FACILITY?

II. WAS [APPELLANT’S] GUILTY VERDICT ON THE
CHARGES OF SEXUAL ABUSE OF CHILDREN[,]
POSSESSION OF CHILD PORNOGRAPHY AND
CRIMINAL USE OF A COMMUNICATION FACILITY
AGAINST THE WEIGHT OF THE EVIDENCE?

III. IS THE MANDATORY MINIMUM SENTENCE OF 25
YEARS TO 50 YEARS IMPRISONMENT THAT
[APPELLANT] RECEIVED UNCONSTITUTIONAL
BECAUSE IT VIOLATES THE 8TH, [SIC] AND 14TH
AMENDMENTS OF THE UNITED STATES
CONSTITUTION, AND ARTICLE I, SECTION 13 OF THE
PENNSYLVANIA CONSTITUTION PROVISIONS
AGAINST CRUEL AND UNUSUAL PUNISHMENT
BECAUSE IT IS GROSSLY DISPROPORTIONATE TO
THE CRIMES [APPELLANT] IS CONVICTED OF?

IV. DID THE TRIAL COURT ERR IN IMPOSING THE
MANDATORY MINIMUM SENTENCE PURSUANT TO 42
Pa.C.S.A. § 9718.2 COMMONWEALTH FAILED TO

-5-
J-S14038-16

PROVIDE [APPELLANT] WITH NOTICE OF THE
APPLICABILITY OF THE STATUTE PRIOR TO TRIAL?

Appellant’s brief at 4.

Our standard of review for sufficiency claims is well-settled:

The standard we apply in reviewing the sufficiency of 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 that of
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 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
trier 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. Robertson-Dewar, 829 A.2d 1207, 1211 (Pa.Super.

2003).

Section 6312(d), Sexual Abuse of Children, Child Pornography,

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(d).

-6-
J-S14038-16

With regard to § 6312, the Commonwealth must prove the
following three (3) elements beyond a reasonable doubt in order
to convict an individual of this offense: there must be a depiction
of an actual child engaged in a prohibited sexual act or a
simulated sexual act; the child depicted must be under the age
of eighteen (18); and the defendant must have knowingly
possessed or controlled the depiction.

Commonwealth v. Koehler, 914 A.2d 427, 436 (Pa.Super. 2006)

(emphasis omitted).7 Section 7512, Criminal Use of a Communication

Facility, provides “[a] person commits a felony of the third degree if that

person uses a communication facility to commit, cause or facilitate the

commission or the attempt thereof of any crime which constitutes a felony

under this title. 18 Pa.C.S.A. § 7512(a).

According to Appellant, a lack of direct evidence connecting him with

child pornography on the laptop proved fatal to the Commonwealth’s case,

as circumstantial evidence failed to allow for a reasonable inference of his

guilt. In this regard, he posits that evidence showing he was the internet

subscriber and profile user on the HP laptop could not, alone, legally suffice

to prove he knowingly controlled or possessed child pornography,

particularly where Gonzalez had equal access to the laptop. Moreover, he

continues, a mere two-hour surveillance of his residence failed to rule out
____________________________________________

7
This Court’s decision in Koehler pre-dates the first incarnation of section
6312(d) which added intentional viewing to its list of proscribed conduct.
See Act of July 14, P.L. 63, No. 15, § 1, effective in Sept. 14, 2009. As
such, Koehler includes only knowing possession or control in setting forth
the elements of a section 6312 offense. Nevertheless, Koehler’s recitation
of the burden of proof governs herein as the allegations against Appellant
were limited to knowing possession or control.

-7-
J-S14038-16

the reasonable possibility that houseguests and visitors had access to the

laptop, which, he argues, “was open and available to anyone in the home.”

Appellant’s brief at 12.

Appellant’s account of the Commonwealth’s evidence is self-servingly

incomplete. Not only was he the internet subscriber, profile user of the HP

laptop, and one of just two residents living at the address, 8 he also admitted

to having access to the laptop, knowing its password, and, significantly,

using its Ares file-sharing program in the past. Moreover, an OAG agent

testified that investigators determined the digital tablet no longer worked

and found no pornography of any kind on the Gateway laptop computer Ms.

Gonzalez claimed was hers. N.T. at 159.

In contrast, forensic examination of the HP laptop revealed an

approximately three-year history in which apparent images of child

pornography were frequently sought and viewed under Appellant’s

username. N.T. at 210-11. A 56-page report of activity on the Ares

program also identified a three-year history of downloading videos bearing

well-known child pornography acronym titles. N.T. at 212-15. Such titles

appeared on nearly every page of the report. Id. Moreover, a 36-page

report listed all search terms entered into the laptop’s Ares program since its
____________________________________________

8
An OAG agent testified that agents cross-checked Appellant’s residential
address with driver’s license information and the “CLEAR” law enforcement
criminal record website and found two matches: one for Appellant and one
for Ms. Gonzalez. N.T. at 246.

-8-
J-S14038-16

2011 installation, and on the first page, alone, the OAG agent identified

seven word searches relating to child pornography. N.T. at 214-15. This

report also reflected many instances in which the same search terms were

repeated “over and over again,” consistent with the common practice of an

habitual user attempting to elude detection by seeking familiar materials

that enable quick access, viewing, and deletion, the OAG offered in his

expert opinion. N.T. at 216. Pertinent, too, was the time of day in which

the laptop’s user placed the child pornography files into the Ares program.

Forensic examination of the laptop determined that each file was created

during evening and nighttime hours ranging from 8:00 p.m. to after

midnight, with the last download into Ares occurring on the night before

authorities served the warrant. N.T. at 205-07. Evidence established that

Appellant worked a daytime job. N.T. at 130-32.

Viewing the sum of this evidence and all reasonable inferences drawn

from it in a light most favorable to the verdict winner, we discern no merit to

Appellant’s sufficiency challenge. There is no reasonable dispute that

someone in Appellant’s apartment placed child pornography in the HP

laptop’s Ares program. One of just two persons residing in his apartment,

Appellant clearly had access to and control over the HP laptop and the child

pornography files it contained. The laptop’s username was his name, he

knew the password, and he admitted using the Ares file-sharing program on

the HP laptop in the past. Forensic study of the laptop revealed a three-year

history of frequent child pornography-related word searches, image viewing,

-9-
J-S14038-16

and video downloading, marked by a pattern of repeatedly viewing the same

materials in a manner suggestive of a single user. All recent child

pornography activity for which Appellant was charged occurred during

nighttime, including midnight of April 16, 2014, just hours before the

morning service of the search warrant; evidence indicated Appellant worked

in the daytime.

Nor does evidence support Appellant’s position that the laptop was

open and accessible to guests, as authorities found the laptop secreted in a

hallway closet. In fact, only the Gateway laptop lay in the open, and it

contained no pornography of any kind. N.T. at 127, 159-60. Neither does

Appellant’s attempt to enlarge the number of potential users gain any

traction when read against the record. At trial, an OAG agent discussed the

law-enforcement resources she used to confirm that Appellant and Ms.

Gonzalez were the only two residents at the address, and she observed no

other persons entering or leaving Appellant’s residence during an

approximately two-hour surveillance of the property. N.T. at 157-58, 245-

46. In short, evidence placed no one other than Appellant and Ms. Gonzalez

in a position to control or possess the illicit materials contained in the HP

laptop.

Appellant’s notion that the Commonwealth must disprove

unsubstantiated claims of access by unspecified persons is at odds with

Pennsylvania jurisprudence on constructive possession, even where joint

control and equal access are present:

- 10 -
J-S14038-16

The existence of constructive possession of a controlled
substance is demonstrated by “the ability to exercise a conscious
dominion over the illegal substance: the power to control the
[illegal substance] and the intent to exercise that control.”
[Commonwealth v.] Valette, 531 Pa. [384,] 388, 613 A.2d
[548,] 550 (quoting Commonwealth v. Macolino, 503 Pa. 201,
206, 469 A.2d 132, 134 (1983)). An “intent to maintain a
conscious dominion may be inferred from the totality of the
circumstances.” Macolino, 503 Pa. at 206, 469 A.2d at 134.
Thus, circumstantial evidence may be used to establish
constructive possession of the illegal substance. Id.
Additionally, our Court has recognized that “[c]onstructive
possession may be found in one or more actors where the item
in issue is in an area of joint control and equal access.” Valette,
531 Pa. at 388, 613 A.2d at 550.

Commonwealth v. Johnson, 611 Pa. 381, 407, 26 A.3d 1078, 1093-94

(2011) (footnote omitted). Accord Commonwealth v. Mudrick, 510 Pa.

305, 307, 507 A.2d 1212, 1213 (1986) (jury could find constructive

possession where contraband was found in an area where defendant and his

paramour had joint control and equal access). In the context of a section

6312(d) appeal, this Court’s panel decision in Koehler, supra, applied this

precept in finding evidence sufficient to prove the defendant’s knowing

control over child pornography in a household computer:

Likewise without merit are [a]ppellant's sufficiency claims based
on: others in his home, to wit, his aunt, brother, and friend all
having equal access to the computer; no direct evidence that he
ever viewed the materials at issue; no direct evidence that
[a]ppellant had been the one to subscribe and pay for internet
service; and no direct evidence that [a]ppellant was the one to
have visited the pornographic websites from where the twelve
videos were obtained and paid for the videos. Each argument
implicates the jury's factual determinations, and, as we note
above, it is the province of the jury to pass on the weight to be
accorded evidence and to assess the credibility of witnesses. [ ]
Here, the jury clearly disbelieved defense theories on

- 11 -
J-S14038-16

[a]ppellant's access to and activities on the computer in
question, and there exists no reason to disturb the jury's
determination on appeal.

Nevertheless, it is clear that sufficient evidence existed to
support the jury's determination. The Commonwealth
established, inter alia, that the computer bore a screen name,
systems properties name, and a software registration name all
referring in some respect to [a]ppellant's proper name.
Furthermore, the Commonwealth established that 12 of the 14
video clips in question were downloaded onto his computer in
the early morning before [a]ppellant's work hours began, and
the other two videos were downloaded at nearly midnight, after
[a]ppellant's work hours. The totality of the circumstances
presented at trial thus permitted the jury to infer [a]ppellant's
ownership, use, and ability to access the materials at issue such
that it was he, and no one else in his aunt's home, who
possessed the child pornography at issue.

Koehler, 914 A.2d at 437 (internal citation omitted).

We, therefore, conclude that evidence clearly sufficed to find Appellant

guilty of all elements of the section 6312(d) offense beyond a reasonable

doubt. Moreover, as Appellant predicated his Criminal Use of a

Communication Facility sufficiency challenge on this failed section 6312(d)

argument, that challenge must also fail.

Appellant next challenges the weight of the evidence offered to

support his convictions.

An appellate court's standard of review when presented with a weight

of the evidence claim is distinct from the standard of review applied by the

trial court:

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,

- 12 -
J-S14038-16

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.

Commonwealth v. Clay, 619 Pa. 423, 432, 64 A.3d 1049, 1055 (2013)

(internal citations omitted).

In support of his weight of the evidence claim, Appellant asserts in

absolute terms that the lingering effect of having observed the disturbing

video and pictorial evidence must have distracted the jury from its task of

applying the law to the facts. A jury so overborne was incapable of

assessing properly the obvious shortcomings of merely circumstantial

evidence and must have convicted Appellant solely as a reaction to the

content of the videos and images, Appellant argues. By supplementing this

this bare assertion with neither developed argument nor citation to

supporting authority, however, he has failed to preserve it. See Pa.R.A.P.

2119(b).

In his third issue comprising two sub-parts,9 Appellant first advances

an Eighth Amendment proportionality challenge to the mandatory minimum

sentencing scheme in section 9718.2.10 In furtherance of this challenge,
____________________________________________

9
Appellant’s statement of questions presented and his argument section
inconsistently enumerate four and three questions, respectively. We elect to
follow the argument section’s enumeration of issues.
10
In Appellant’s brief are both a “Statement of the Questions Involved” and
a heading to argument on this issue in which he avers that the sentencing
(Footnote Continued Next Page)

- 13 -
J-S14038-16

Appellant makes two discrete arguments. First, he maintains his mandatory

minimum sentence of 25 years is grossly disproportionate to his crime when

viewed against a guideline range sentence of 9 to 16 months, +/- 6 months

that would apply to a first-time sex offender committing the same

possessory offense and having the same prior record score as he. Second, a

finding of gross disproportionality also results when comparing his sentence

to the mandatory ten-year minimum sentence applicable to what he calls the

“more serious” offense of a first-time forcible rape of a child under 13 years

of age under 42 Pa.C.S. § 9781(a), he contends.

All properly enacted statutes enjoy a strong presumption
of constitutionality. Commonwealth v. Bullock, 590 Pa. 480,
487, 913 A.2d 207, 211 (2006), cert. denied, 550 U.S. 941,
127 S.Ct. 2262, 167 L.Ed.2d 1103 (2007); In re C.C.J., 799
A.2d 116 (Pa.Super. 2002).
Accordingly, a statute will not be declared
unconstitutional unless it clearly, palpably, and
_______________________
(Footnote Continued)

scheme also violates Article I, Section 13 of the Pennsylvania Constitution
and its prohibition against “cruel and unusual” [sic] punishments. See Pa.
Const. art. I, § 13 (prohibiting, inter alia, “cruel punishments”). We decline
to engage in a state constitutional review of Appellant’s mandatory minimum
sentence, however, where he has filed a Pa.R.A.P. 1925(b) statement
grounding his proportionality challenge exclusively in the Eighth
Amendment, see Commonwealth v. Harrell, 65 A.3d 420, 435 (Pa.Super.
2013) (argument not raised in appellant's Rule 1925(b) statement waived on
appeal), and has correspondingly briefed an argument invoking Eighth
Amendment jurisprudence only, supplying no analysis implicating Article I,
Section 13. See Commonwealth v. Baker, 621 Pa. 401, 78 A.3d 1044
(2013) (confining judicial review to Eighth Amendment principles governing
sentence proportionality where appellant confined argument to federal
constitutional principles and provided no separate analysis under state
constitution).

- 14 -
J-S14038-16

plainly violates the Constitution. All doubts are to be
resolved in favor of finding that the legislative
enactment passes constitutional muster. Thus, there
is a very heavy burden of persuasion upon one who
challenges the constitutionality of a statute.
Pennsylvanians Against Gambling Expansion Fund, Inc. et
al. v. Commonwealth of Pennsylvania, et al., 583 Pa. 275,
292, 877 A.2d 383, 393 (2005) (internal citations omitted).
Appellate review of constitutional challenges to statutes,
disputes over the legality of a sentence, a court's application of a
statute, and general questions of law involve a plenary scope of
review. Commonwealth v. McCoy, 895 A.2d 18, 24 (Pa.Super.
2006), [aff’d], 601 Pa. 540, 975 A.2d 586 (2009). “As with all
questions of law, the appellate standard of review is de novo....”
In re Wilson, 879 A.2d 199, 214 (Pa.Super. 2005) (en banc ).

Commonwealth v. Shawver, 18 A.3d 1190, 1193-94 (Pa.Super. 2011)

In Baker, the Pennsylvania Supreme Court addressed whether the

mandatory minimum sentencing scheme for recidivist conduct at section

9718.2 ran afoul of the Eighth Amendment. Viewed under a standard of

review that presumes them constitutional, the Court observed, such

schemes seldom fail to pass muster under the mandated, three-pronged

federal approach used to determine their constitutionality:11

“The Eighth Amendment does not require strict proportionality
between crime and sentence. Rather, it forbids only extreme
sentences which are grossly disproportionate to the crime.”
Commonwealth v. Hall, 549 Pa. 269, 701 A.2d 190, 209
(1997) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001,
111 S.Ct. 2680, 115 L.Ed.2d 836 (1991)). . . . In
Commonwealth v. Spells, 417 Pa.Super. 233, 612 A.2d 458,
462 (1992) (en banc), the Superior Court applied the three-
____________________________________________

11
Baker includes a review of High Court Eighth Amendment proportionality
decisions illustrating that successful challenges to recidivist sentencing
schemes and non-capital sentences are “extremely rare.” Id. at 1048-49.

- 15 -
J-S14038-16

prong test for Eighth Amendment proportionality review set forth
by the United States Supreme Court in Solem v. Helm, 463
U.S. 277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), and
determined that a five-year mandatory minimum sentence for
offenses committed with a firearm does not offend the
Pennsylvania constitutional prohibition against cruel
punishments. The Spells court observed that the three-prong
Solem proportionality test examines: “(i) the gravity of the
offense and the harshness of the penalty; (ii) the sentences
imposed on other criminals in the same jurisdiction; and (iii) the
sentences imposed for commission of the same crime in other
jurisdictions.” Spells, 612 A.2d at 462 (quoting Solem, 463
U.S. at 292, 103 S.Ct. 3001). The Spells court correctly
observed that a reviewing court is not obligated to reach the
second and third prongs of the test unless “a threshold
comparison of the crime committed and the sentence imposed
leads to an inference of gross disproportionality.” Spells, supra
at 463 (quoting the controlling opinion of Justice Kennedy in
Harmelin, supra at 1005, 111 S.Ct. 2680).4

4
Justice Kennedy's understanding of the first prong of the
Solem test as a threshold hurdle in establishing an Eighth
Amendment violation has been recently cited with approval by
the High Court as well. “A court must begin by comparing the
gravity of the offense and the severity of the sentence.”
Graham v. Florida, 560 U.S. 48, 60–61, 130 S.Ct. 2011, 2022,
176 L.Ed.2d 825 (2010). In the “rare case” in which this
threshold comparison leads to an inference of gross
disproportionality, the reviewing court “should then compare the
defendant's sentence with the sentences received by other
offenders in the same jurisdiction and with the sentences
imposed for the same crime in other jurisdictions.” Id. “If this
comparative analysis ‘validate[s] an initial judgment that [the]
sentence is grossly disproportionate,’ the sentence is cruel and
unusual.” Id., quoting Harmelin, supra at 1005, 111 S.Ct.
2680.

Baker, 621 Pa. at 406, 406 n.4, 78 A.3d at 1047, 1047 n.4.

Engaging in a first-prong, threshold stage examination of Baker’s

section 9718.2 sentence, the Court first assessed the gravity of the

possessory offense by drawing upon the United States Supreme Court’s

- 16 -
J-S14038-16

recognition that “the prevention of sexual exploitation and abuse of children

constitutes a government objective of surpassing importance.” Id. at 412,

78 A.3d at 1051 (quoting New York v. Ferber, 458 U.S. 747, 757, 102

S.Ct. 3348, 3355, 73 L.Ed.2d 1113 (1982)). By creating a permanent

record of children’s exploitation and abuse, child pornography entails

“pernicious secondary effects” harming not only depicted child victims who

may encounter such haunting images of themselves throughout their lives,

but also child victims who submit to their abuser’s demands after viewing

images of other children participating in sexual activity, the Court

recognized. Id. at 413, 78 A.3d at 1051. As such, it reasoned, possessing

child pornography itself constitutes a “very grave offense[]” that contributes

to the “devastating victimization that child pornography produces[,]” and

possessing as a recidivist sex offender additionally contributes to offense

gravity. Id. at 414, 78 A.3d at 1051.

Turning to the mandatory punishment imposed, the Court

acknowledged that a sentence of at least 25 years’ imprisonment was

lengthy. The Court pointed to the possibility of parole within Baker’s

expected lifetime, however, as distinguishing it from the life sentence

without the possibility of parole invalidated as disproportionate in Solem,

supra (invalidating life sentence without possibility of parole for recidivist

non-violent offense of passing a bad check in amount of $100). Discerning

no inference of gross disproportionality between Baker’s possessory crimes

under section 6312 and his section 9718.2 mandatory sentence, the Court

- 17 -
J-S14038-16

ended its inquiry at this threshold stage without reaching the second and

third prong tests of the Eighth Amendment proportionality review.

An additional aspect of Baker that is noteworthy for our purposes is

how the Court construed Baker’s arguments in relation to the three-prong

proportionality test. Arguments alluding to lesser sentences for others in

Pennsylvania convicted of violating section 6312 “clearly [went] to the

second prong of the test[,]” the Court reasoned, as did the argument

purportedly identifying an “anomaly” between the length of the section

9718.2 mandatory sentence and the lesser term otherwise applicable to a

felony of the second degree. Id. at 1052 n.9. Significantly, Appellant’s

arguments, as detailed above, are virtually identical to these failed

arguments in Baker judged inapposite to a first-prong, threshold

assessment.

Accordingly, where Appellant has developed no first-prong argument

supported by authority to distinguish his case from Baker, we deem our

Supreme Court’s Eighth Amendment analysis therein binding upon us and

discern nothing in the relationship between Appellants’ crime and section

9718.2 mandatory sentence generating an inference of gross

disproportionality. We, therefore, reject his Eighth Amendment challenge.

The second part to Appellant’s constitutional challenge assails the

notice provisions of section 9718.2(c), which, Appellant maintains, afford

insufficient time to prepare an adequate defense. In the context of the

heightened sentence mandated under the recidivist statute, Appellant

- 18 -
J-S14038-16

argues, a sentencing defense is adequate only if it sets forth the facts and

details underlying predicate prior convictions, particularly where a defendant

pled guilty, as reasons unrelated to actual guilt frequently motivate such

pleas, Appellant argues. The statute’s provision of post-verdict/pre-

sentence notice simply fails to accommodate the need for additional time to

prepare such a defense, a need that would be satisfied only upon receiving

pre-trial notice of the Commonwealth’s intent to seek imposition of a section

9718.2 mandatory minimum sentence.

Appellant’s argument in this respect is fatally underdeveloped, as it

includes no analysis or application of authority in support of his contention

as required by Pa.R.A.P. 2119(b). As such, Appellant cannot be said to have

carried the “very heavy burden of persuasion upon one who challenges the

constitutionality of a statute.” Shawver, supra. Thus, Appellant has

waived this final aspect of his third issue.

For the foregoing reasons, judgment of sentence is AFFIRMED.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/25/2016

- 19 -