J-S20020-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MERI JANE WOODS,
Appellant No. 990 WDA 2015
Appeal from the Judgment of Sentence of December 15, 2014
In the Court of Common Pleas of Indiana County
Criminal Division at No(s): CP-32-CR-0000078-2014
BEFORE: PANELLA, OLSON and PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED MARCH 11, 2016
Appellant, Meri Jane Woods, appeals from the judgment of sentence
entered on December 15, 2014, as made final by the denial of Appellant’s
post-sentence motion on May 19, 2015. We affirm.
The trial court ably summarized the evidence presented during the
suppression hearing:
On August 14, 2013, [Appellant voluntarily] went to the
Pennsylvania State Police, Indiana [Barracks], to complain
of her husband’s alleged involvement in child pornography. .
. . [Appellant] brought a home computer [with her that
day, and she claimed that the computer] contained
evidence [that] support[ed] her allegations. . . .
[Appellant] met with Corporal John Roche, the Coordinator
of the Southwest Computer Crime Task Force, and filled out
a six-page written statement. At this meeting, Corporal
Roche requested [Appellant’s] permission to do a preview
examination of the computer and [Appellant] agreed. Once
the preview was conducted, images were found on the
computer depicting possible child pornography, and
*Retired Senior Judge assigned to the Superior Court.
J-S20020-16
[Appellant] was agreeable when Corporal Roche indicated
he would need to keep [the computer] as a result [of his
findings. The interview ended and Appellant left the
barracks.]
[Both Appellant and Corporal Roche characterized the police
station interview as “friendly.” See Appellant’s Motion to
Suppress, 7/10/14, at ¶¶ 15-16; N.T. Suppression Hearing,
8/7/14, at 10. Moreover, Corporal Roche testified: that
Appellant “was free to leave at any time” during the
interview; that he never read Appellant Miranda1 warnings;
that, although Appellant’s story “seemed unusual,” Corporal
Roche “had no reason to disbelieve the main portion of
[Appellant’s] child pornography accusations” against her
husband; and that, during the interview, he “had no belief
that criminal activity by [Appellant] had occurred.” N.T.
Suppression Hearing, 8/7/14, at 10-11 and 24]. . . .
Following a [later,] full [forensic] review [of the computer,]
Corporal Roche noted that [the] times when the images
were created or accessed were inconsistent with [the] time
periods that [Appellant’s] husband would have had access
to the computer because they occurred after he had moved
from the residence. . . .
Trial Court Opinion, 8/12/14, at 1-2.
On December 19, 2013, the Commonwealth charged Appellant with
sexual abuse of children and unsworn falsification to authorities.2 With
respect to the sexual abuse of children charge, the Commonwealth’s later-
filed Information declared:
COUNT 1: Child Pornography – (F3)
____________________________________________
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
18 Pa.C.S.A. § 6312(d)(1) (effective from December 24, 2012 to
December 31, 2013) and 4904(a)(1), respectively.
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Offense Date: 08/14/13 18 § 6312 §§ D1
Knowingly possessed or controlled a 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, to wit, the defendant did possess via
a computer system/storage medium, files that depicted
child pornography, an example of one of these is a file
[name], “F7pzSGKQdk[1].jpg”, which is a picture of an
approximately 9-11 year old female, providing oral
copulation to an adult male penis. The image was written
to the internal hard disk drive on the defendant’s computer
on 8/11/13.
...
Citation of Statute and Section 1[:] 18 § 6312 §§ D1 (F3)
...
Commonwealth’s Information, 2/18/14, at 1.
Of note, the above description of 18 Pa.C.S.A. § 6312(d)(1)
constitutes only a partial quotation of the statute. At the time Appellant
committed the charged crime, 18 Pa.C.S.A. § 6312(d)(1) read in full:
§ 6312. Sexual abuse of children
...
(d) Child pornography.--
(1) Any 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 engaging in a prohibited
sexual act or in the simulation of such act commits
an offense.
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18 Pa.C.S.A. § 6312(d)(1) (effective from December 24, 2012 to December
31, 2013).3, 4
Appellant, however, did not contest the sufficiency of the Information.
Prior to trial, Appellant filed a motion to suppress the verbal and
written statements she made during the August 14, 2013 police station
interview. Within her suppression motion, Appellant admitted that she
“voluntarily and of her own free will” went to the police station on August
14, 2013 and that the interview between herself and Corporal Roche on
August 14, 2013 was “friendly.” Appellant’s Motion to Suppress, 7/10/14, at
¶¶ 8 and 15-16. However, Appellant claimed that her “verbal and written
statements [] were unlawfully obtained” because, during the interview,
Corporal Roche harbored an unarticulated and hidden suspicion that she
actually committed the crime. Id. at ¶¶ 11-21. The trial court denied
Appellant’s suppression motion after a hearing. Trial Court Order, 8/12/14,
at 1.
____________________________________________
3
At the time Appellant committed the crime, 18 Pa.C.S.A. § 6312(d)(2)
declared: “[a] first offense under this subsection is a felony of the third
degree, and a second or subsequent offense under this subsection is a felony
of the second degree.” 18 Pa.C.S.A. § 6312(d)(2) (effective from December
24, 2012 to December 31, 2013).
4
On January 1, 2014, 18 Pa.C.S.A. § 6312(d)(1) was renumbered; the
crime of child pornography is currently located at 18 Pa.C.S.A. § 6312(d).
However, the 2014 amendment did not alter the definition of the crime.
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Appellant proceeded to a one-day jury trial, where the Commonwealth
presented Corporal Roche as both a lay witness and as an expert witness in
the field of computer forensics. N.T. Trial, 8/19/14, at 29. Corporal Roche
testified that on August 14, 2013, Appellant appeared at the Pennsylvania
State Police, Indiana Barracks to report that her husband, Matthew Woods,
had committed a crime. Id. at 30. Appellant carried her personal computer
into the barracks. Id. at 31. Corporal Roche testified that, after he and
Appellant went back into his office:
[Appellant said] she had been having difficulties and
problems with her husband, Matthew Woods. And she
essentially was bringing me the computer because she
wanted me to take a look at what was on it because she
wanted to tell me that there was child pornography images
on the computer and that they were put there by her
husband, Matthew Woods.
Id.
Since Appellant was “providing [the Corporal] with a lot of
information,” Corporal Roche asked Appellant to fill out a written statement.
Appellant did so. Id. As Corporal Roche testified, Appellant wrote the
following in her written statement:5
Well, she started to say that her husband worked a lot and
that she was starting to feel as if she wasn’t close to him
anymore. She felt that he was not himself and that he
maybe had a girlfriend. So she took some of her phone
____________________________________________
5
Appellant failed to include a copy of the written statement in the certified
record to this Court.
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records and she started conducting searches on the internet
with his particular cell phone number to see what would
come up. She said she felt that he was using prostitutes
and I believe he was involved in escort services, he was
involved in . . . some type of drug organization, he was
running it. She stated that the IP address from her
computer was seen all over the world and was used for
pornography websites and child pornography websites. She
said that he was selling sexual toys on eBay. She said that
she had found on some websites pictures of him, pictures of
his niece, pictures of their daughter.
...
[S]he said also that her husband . . . was running multiple
websites. He was running pornography websites . . . and
doing so at least to some extent from the computer that she
had brought to me.
...
[S]he says . . . there is one . . . picture[] showing a man’s
private area on a child’s mouth. I believe that in this photo
is my husband, Matthew [] Woods.
...
[S]he [also] said [that her husband] left the residence on
July 23[,] 2013, and . . . has not been back since.
Id. at 34-35, 42, and 56.
During trial, Appellant’s written statement was admitted into evidence
without objection. Id. at 60.
Corporal Roche further testified that, after Appellant completed her
written statement, Appellant directed him “to various websites to show . . .
where she said her husband [or daughter] was depicted.” Id. at 37.
However, as Corporal Roche testified, he did not believe that any of the
pornographic images Appellant showed him depicted either Appellant’s
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husband or daughter. Id. at 37-42. Moreover, and contrary to Appellant’s
written declaration, Corporal Roche testified that a review of the computer
revealed no evidence that Matthew Woods was “running any type of
website.” Id. at 58.
Further, during the trial:
Corporal Roche provided testimony regarding his experience
with the Pennsylvania State Police, and in particular, his
training and experience in computer forensics. Corporal
Roche testified that he received training from EnCase,[6] and
that he is an EnCase certified examiner. He also testified
that he is an AccessData certified examiner.[fn.1] . . . [N.T.
Trial, 8/19/14, at 25-26].
[fn.1] AccessData is the maker of the Forensic Tool Kit
[(hereinafter “FTK”)]. [Corporal Roche testified that:
“AccessData is another company in competition with
EnCase. And they make a similar tool. It works
perhaps a little bit differently, but its mission and
function are the same, the forensic examination of
storage media of computers and any type of storage
media, flash drive, what have you.” N.T. Trial, 8/19/14,
at 26.]
With regard to determining “date stamps” or “time stamps”
relevant to this matter, Corporal Roche testified that he first
used the EnCase program to search the hard drive of the
____________________________________________
6
As Corporal Roche testified:
EnCase is a company that makes a software forensic sweep
for use by law enforcement and industry. It’s a very
expensive program that’s used to be able to look into some
type of media, generally speaking a computer’s hard drive,
and start searching for evidence.
N.T. Trial, 8/19/14, at 25.
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computer brought to the police barracks by [Appellant].
The gallery function of the EnCase software allowed
Corporal Roche to search through a thumbnail gallery of
photographs in a timely fashion. Corporal Roche testified
that he identified 43 images that he believed depicted
images of child pornography.[7] Corporal Roche then used
EnCase to create [an] “exact bit for bit copy of every piece
of information on the [computer’s] hard drive.” [Id. at 50].
Corporal Roche then was able to examine each image to
determine when it was placed on the computer.
Corporal Roche testified that the created date and time for
“[j]ust about all of the images” was “August 11, 2013,
between the times of about [nine] o’clock and 12 o’clock
a.m.” [Id. at 51]. He then testified that the created date
and time “is the absolute most accurate time to use of when
it was first put there.” [Id.] Corporal Roche [testified] that
“the original created date and time will always stay the
same on the host computer.” [Id. at 52]. In conclusion,
Corporal Roche [testified] that he [was] “[a]bsolutely
scientifically certain that the dates and times are that which
was when the computer was used to look at these images
and download these images depicting child pornography.”
[Id. at 56. Moreover, Corporal Roche testified that the
images of child pornography on the computer “were all
created [and] accessed on or after the period of time that
Matthew Woods left the house.”8 Id. at 69].
Corporal Roche then testified that he used the . . . FTK from
AccessData as a separate method of determining the
created date and time for the pornographic images. Using
this forensic tool, and comparing the results to the results
reached using EnCase, “[t]he created, the modified, the last
accessed, the entry modified, all these dates and times
____________________________________________
7
During trial, the parties stipulated that “the photos found on the computer
depicted children between the ages of [nine] to 11 engaging in a prohibited
sexual act or simulation of such an act.” N.T. Trial, 8/19/14, at 76.
8
Again, in her August 14, 2013 written statement to the police, Appellant
admitted that Matthew Woods “left the residence on July 23[,] 2013, and . .
. [had] not been back since.” N.T. Trial, 8/19/14, at 42.
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were exactly the same to the hundredths of a second on
each and every photograph.” [Id. at 57].
[Appellant] called Dr. Linda Volonino to testify [on her
behalf]. Dr. Volonino holds a Ph.D. and an MBA in
Information Systems. She is a full professor at Canisius
College and an associate with Robson Forensics. Dr.
Volonino testified that she trained with FTK in New York
City, and she teaches FTK to her students. Dr. Volonino
[testified] that she has minimal training with EnCase. The
[trial] court accepted Dr. Volonino as an expert in the field
of computer forensics. [Id. at 78-83].
With regard to the reliability of the time stamps of the
images at issue in this matter, Dr. Volonino testified that
the time stamps “have no meaning.” [Id. at 87]. She
explained this opinion by [testifying:] “[b]ecause the way
EnCase treats deleted files, the software, specifically EnCase
software, will create a folder called logged files. And when
it does, it puts all of these deleted files into the lost files
folder because it doesn’t know what to do with them, that
is, it cannot associate it with any folder. And EnCase admits
that once files are deleted the time stamps are unreliable.”
[Id.] Dr. Volonino concluded that the time stamps on the
jpeg files that came to her in this case [were] unreliable.
[Id. at 88].
When questioned about Corporal Roche’s use of FTK, and
the fact that the time stamp results were identical to the
time stamp results using EnCase, Dr. Volonino [testified]
that she “was not provided with any of [Corporal Roche’s]
results from FTK.” [Id. at 89]. Dr. Volonino then [testified]
that the time stamp results using FTK would be unreliable[]
because whether a technician is using EnCase or FTK, when
a file is deleted, the file system deletes the time stamp, and
the tool kit cannot recreate it. [Id. at 88].
Trial Court Opinion, 5/19/15, at 6-9 (some internal citations and internal
capitalization omitted).
In addition to the above evidence, Corporal Roche testified that, in his
opinion, the child pornography did not “inadvertently” appear on Appellant’s
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computer. N.T. Trial, 8/19/14, at 58. Rather, Corporal Roche testified: that
the child pornography on the computer was the result of “at least [three]
hours of searching the internet for these images” and that “it [was] a fair
statement [to say] that on August 11[, 2013,] between th[e] hours of [nine]
and 11, [Appellant] went to th[e child pornography] websites.” Id. at 58-59
and 74-75.
The trial court then charged the jury. With respect to the sexual
abuse of children count, the court charged the jury as follows:
to find [Appellant] guilty of this offense, you must find that
each of the following [four] elements have been proven
beyond a reasonable doubt, first, that [Appellant]
possessed, controlled, [or] intentionally viewed the
computer depiction. And we’re going to say that the term
intentionally viewed means that [Appellant] deliberately,
purposely and voluntarily viewed material depicting a child
of under 18 years of age engaged in a prohibited sexual act
or the simulation of such an act. The term does not mean
the inadvertent or accidental viewing of such material.
Second, that the item depicted a child engaging in a
prohibited sexual act or the simulation of such an act.
Third, that the child was at the time under the age of 18.
And, fourth, that [Appellant] did so knowingly, in other
words, [Appellant] was aware of what she possessed or
controlled, she was aware of the nature of its contents and
that the child involved was under the age of 18.
N.T. Trial, 8/19/14, at 136-137.
Appellant did not object to any portion of the trial court’s jury charge.
Id. at 143.9
____________________________________________
9
We note that, in response to a jury question, the trial court recharged the
jury on the elements for both charges. See N.T. Trial, 8/19/14, at 146-147.
(Footnote Continued Next Page)
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The jury found Appellant guilty of both sexual abuse of children and
unsworn falsification to authorities.
On December 15, 2014, the trial court sentenced Appellant to serve a
jail term of not less than nine months nor more than two years less one day,
followed by two years of probation. The trial court denied Appellant’s timely
post-sentence motion on May 19, 2015 and Appellant filed a timely notice of
appeal.10 Appellant raises three claims on appeal:
[1.] Whether the trial court erred by denying the motion to
suppress statements inasmuch as the statements of
[Appellant] below were involuntary under the special
circumstances of the interrogation when obtained?
[2.] Whether the trial court erred by denying the motion for
judgment of acquittal on the conviction for child
pornography inasmuch as the information only charged such
crime for knowing possession or control of child
pornography, but not for intentional viewing of child
pornography, and the evidence did not suffice to prove
knowing possession or control of child pornography?
[3.] Whether the trial court erred by denying the motion for
judgment of acquittal on the conviction for unsworn
falsification to authorities inasmuch as the evidence did not
suffice to prove the element that [Appellant] made a written
false statement which she did not believe to be true?
_______________________
(Footnote Continued)
The recharge was, for all intents and purposes, identical to the original
charge and Appellant did not object to the trial court’s recharge. Id.
10
On April 23, 2015, the trial court granted Appellant’s motion to extend the
deadline for deciding the post-sentence motion. Trial Court Order, 4/23/15,
at 1; see also Pa.R.Crim.P. 720(B)(3)(b) (“[u]pon motion of the defendant
within the 120-day disposition period, for good cause shown, the judge may
grant one 30-day extension for decision on the [post-sentence] motion”).
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Appellant’s Brief at 5 (some internal capitalization omitted).11
Appellant first claims that the trial court erred when it denied her
motion to suppress the oral and written statements she made to Corporal
Roche on August 14, 2013. This claim fails.
“Once a motion to suppress evidence has been filed, it is the
Commonwealth’s burden to prove, by a preponderance of the evidence, that
the challenged evidence was not obtained in violation of the defendant’s
rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047-1048 (Pa.
Super. 2012) (en banc); see also Pa.R.Crim.P. 581(H). With respect to an
appeal from the denial of a motion to suppress, our Supreme Court has
declared:
Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is whether the factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. When
reviewing the ruling of a suppression court, we must
consider only the evidence of the prosecution and so much
of the evidence of the defense as remains uncontradicted
when read in the context of the record. . . . Where the
record supports the findings of the suppression court, we
are bound by those facts and may reverse only if the legal
conclusions drawn therefrom are in error.
Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (internal
citations omitted). “It is within the suppression court’s sole province as
____________________________________________
11
For ease of discussion, we have re-numbered Appellant’s claims on
appeal.
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factfinder to pass on the credibility of witnesses and the weight to be given
their testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa.
Super. 2006). Moreover, we note that our scope of review from a
suppression ruling is limited to the evidentiary record that was created at
the suppression hearing.12 In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).
“To safeguard an uncounseled individual’s Fifth Amendment privilege
against self-incrimination, suspects subject to custodial interrogation by law
enforcement officers must be warned that they have the right to remain
silent, that anything they say may be used against them in court, and that
they are entitled to the presence of an attorney.” In re R.H., 791 A.2d 331,
333 (Pa. 2002) (plurality); Miranda, 384 U.S. at 444-445. “If a person is
not advised of his Miranda rights prior to custodial interrogation by law
enforcement officers, evidence resulting from such interrogation cannot be
used against him.” In re R.H., 791 A.2d at 333; Miranda, 384 U.S. at 444-
____________________________________________
12
On October 30, 2013, our Supreme Court decided In re L.J. In L.J., our
Supreme Court held that our scope of review from a suppression ruling is
limited to the evidentiary record that was created at the suppression
hearing. In re L.J., 79 A.3d at 1087. Prior to L.J., this Court routinely held
that, when reviewing a suppression court’s ruling, our scope of review
included “the evidence presented both at the suppression hearing and at
trial.” See Commonwealth v. Charleston, 16 A.3d 505, 516 (Pa. Super.
2011), quoting Commonwealth v. Chacko, 459 A.2d 311, 317 n.5 (Pa.
1983). L.J. thus narrowed our scope of review of suppression court rulings
to the evidence presented at the suppression hearing. In this case,
Appellant’s suppression hearing occurred after L.J. was decided. Therefore,
the procedural rule announced in L.J. applies to the case at bar.
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445. However, “[a]n officer’s obligation to administer Miranda warnings
attaches . . . only where there has been such a restriction on a person’s
freedom as to render him ‘in custody.’” In re V.H., 788 A.2d 976, 980 (Pa.
Super. 2001), quoting Stansbury v. California, 511 U.S. 318, 322-323
(1994) (some internal quotations omitted). As this Court has summarized:
The warnings articulated by [Miranda] become mandatory
whenever one is subjected to custodial interrogation. The
United States Supreme Court has defined custodial
interrogation as “questioning initiated by law enforcement
officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any
significant way.” [Miranda, 384 U.S. at 444-445].
Police detentions only become custodial when, under the
totality of the circumstances, the conditions and/or duration
of the detention become so coercive as to constitute the
functional equivalent of formal arrest.
Whether a person is in custody for Miranda purposes
depends on whether the person is physically deprived of his
freedom of action in any significant way or is placed in a
situation in which he reasonably believes that his freedom
of action or movement is restricted by the interrogation.
Moreover, the test for custodial interrogation does not
depend upon the subjective intent of the law enforcement
officer interrogator. Rather, the test focuses on whether
the individual being interrogated reasonably believes his
freedom of action is being restricted.
The factors a court utilizes to determine, under the totality
of the circumstances, whether a detention has become so
coercive as to constitute the functional equivalent of arrest
include: the basis for the detention; its length; its location;
whether the suspect was transported against his or her will,
how far, and why; whether restraints were used; whether
the law enforcement officer showed, threatened or used
force; and the investigative methods employed to confirm
or dispel suspicions. The fact that a police investigation has
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focused on a particular individual does not automatically
trigger “custody,” thus requiring Miranda warnings.
Commonwealth v. Baker, 963 A.2d 495, 500-501 (some internal citations,
quotations, and corrections omitted).
Appellant claims that the trial court erred when it failed to suppress
the oral and written statements that she made to Corporal Roche on August
14, 2013. As noted above, on August 14, 2013, Appellant “voluntarily and
of her own free will” appeared at the police station and then engaged in a
“friendly” interview with Corporal Roche. Appellant’s Motion to Suppress,
7/10/14, at ¶¶ 8 and 15-16. However, during this interview, Appellant
proffered oral and written statements that were eventually used against her
at trial.
On appeal, Appellant concedes that her interview with Corporal Roche
that day was non-custodial in nature. Appellant’s Brief at 20-21 (conceding
that the interview was non-custodial). Nevertheless, Appellant claims that
the “special circumstances” of this case resulted in her statements being
involuntary and subject to suppression. Specifically, Appellant claims:
even a non-custodial interrogation may result in an
involuntary statement. A non-custodial interrogation might
possibly in some situations by virtue of some special
circumstances result in an involuntary statement. See
Beckwith v. United States, 425 U.S. 341, 347-348 []
(1976). It is submitted that Appellant’s circumstances were
special in that Corporal Roche formed the opinion that she
was reporting child pornography and that it existed on the
computer, but that he questioned her motivation. The
interrogation became, at that point, a game of cat-and-
mouse regardless of how it began. Thus, the trial court
erred by failing to suppress the statements as involuntary.
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Id. at 21-22 (some internal citations omitted).
As Appellant correctly notes, in Beckwith, the United States Supreme
Court recognized “that non[-]custodial interrogation might possibly in some
situations, by virtue of some special circumstances, be characterized as one
where the behavior of law enforcement officials was such as to overbear [the
defendant’s] will to resist and bring about confessions not freely self-
determined.” Beckwith, 425 U.S. at 347-348 (internal quotations,
citations, and corrections omitted). However, the “special circumstances”
referenced in Beckwith do not exist in the case at bar. Indeed, viewing the
evidence in the light most favorable to the Commonwealth, the relevant
evidence in this case demonstrates that: Appellant “voluntarily and of her
own free will” went to the police station on August 14, 2013 to report that
her husband committed a crime; Corporal Roche spoke to Appellant in “the
main area of [his] office,” at “a large conference table;” Appellant “was free
to leave at any time” during the interview; Corporal Roche never read
Appellant Miranda warnings; although Appellant’s story “seemed unusual,”
Corporal Roche “had no reason to disbelieve the main portion of
[Appellant’s] child pornography accusations” against her husband; during
the interview, Corporal Roche “had no belief that criminal activity by
[Appellant] had occurred;” the entire interaction between Corporal Roche
and Appellant on August 14, 2013 was “friendly;” and, Appellant left the
police station at the end of the interview. N.T. Suppression Hearing, 8/7/14,
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at 7, 10-11 and 24; Appellant’s Motion to Suppress, 7/10/14, at ¶¶ 8 and
15-16.
To quote Beckwith, “the entire interview [in this case] was free of
coercion.” Beckwith, 425 U.S. at 348. As such, Appellant’s claim that the
trial court erred in denying her motion to suppress fails.
Next, Appellant claims that the evidence was insufficient to support
her conviction for sexual abuse of children, 18 Pa.C.S.A. § 6312(d)(1). This
claim fails.
We review Appellant’s sufficiency of the evidence challenge under the
following standard:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying the above test, we may not weigh the evidence
and substitute our judgment for [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.
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Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en
banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-806
(Pa. Super. 2008).
According to Appellant, although the Commonwealth charged her with
violating 18 Pa.C.S.A. § 6312(d)(1), the Commonwealth’s Information only
quoted a portion of the statute. In particular, Appellant notes, the
Information only declared that Appellant had “[k]nowingly possessed or
controlled” child pornography. Appellant’s Brief at 12. However, 18
Pa.C.S.A. § 6312(d)(1) not only criminalizes the knowing “possess[ion] or
control[]” of child pornography, but it also criminalizes the “intentional[]
view[ing]” of child pornography. 18 Pa.C.S.A. § 6312(d)(1). Appellant
argues that, since the Information failed to charge her with “intentionally
view[ing]” child pornography, she could not have been lawfully convicted of
this aspect of the crime. Appellant’s Brief at 15. Appellant then claims that
the “Commonwealth presented no competent evidence of [Appellant’s]
knowing possession or control of the files on or about August 14, 2013” –
and that the evidence was thus insufficient to support her conviction for
violating 18 Pa.C.S.A. § 6312(d)(1). See id. Appellant’s claim fails for at
least two independent reasons.
First, Appellant never challenged the sufficiency of the
Commonwealth’s Information at the trial level. Moreover, during trial, the
trial court charged the jury on all aspects of 18 Pa.C.S.A. § 6312(d)(1).
Specifically, the trial court instructed the jury that, to find Appellant guilty of
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violating 18 Pa.C.S.A. § 6312(d)(1), the jury must find “that [Appellant]
possessed, controlled, [or] intentionally viewed the computer
depiction” of child pornography. N.T. Trial, 8/19/14, at 137 (emphasis
added); see also N.T. Trial, 8/19/14, at 146-147 (during the recharge to
the jury, the trial court stated: “[t]o find [Appellant] guilty of [sexual abuse
of children,] you must find . . . first, that [Appellant] possessed, controlled,
or intentionally viewed a computer depiction” of child pornography).
Appellant did not object to this jury instruction.
On appeal, Appellant acknowledges that she failed to object to the trial
court’s jury charge. Appellant’s Brief at 15. However, she claims that she
still could not have been convicted of “intentionally viewing” child
pornography because “due process does not permit [her to be] convicted of
an uncharged classification of 18 Pa.C.S.A. § 6312(d)(1). Id. This claim
fails.
Our Supreme Court has long-since abrogated the “basic and
fundamental error” doctrine in the criminal law arena. See
Commonwealth v. Clair, 326 A.2d 272, 274 (Pa. 1974). To preserve an
issue for appellate review, it is axiomatic that the issue must first be raised
in the trial court. Pa.R.A.P. 302(a). Indeed, with respect to erroneous jury
instructions, our Rules of Criminal Procedure explicitly declare: “[n]o
portions of the charge nor omissions from the charge may be assigned as
error, unless specific objections are made thereto before the jury retires to
deliberate.” Pa.R.Crim.P. 647(b).
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In the case at bar, Appellant failed to object to the erroneous jury
charge and the trial court was thus never given the opportunity to correct its
mistake. This results in waiver of the issue, notwithstanding the fact that
the error implicated Appellant’s due process rights. Certainly, when our
Supreme Court eliminated the basic and fundamental error doctrine from our
jurisprudence, our high Court anticipated that due process violations would
and could be waived on direct appeal. As our Supreme Court declared:
“abrogating the [basic and fundamental error] doctrine in the criminal area
may be even more compelling [than eliminating the doctrine from our civil
law] since any error that deprives a defendant of due process can
more properly be remedied by a claim of ineffective assistance of counsel.”
Clair, 326 A.2d at 274 (emphasis added); see also Commonwealth v.
Matty, 619 A.2d 1383, 1386-87 (Pa. Super. 1993) (where the information
charged the defendant with solicitation to commit theft by receiving stolen
property, but where the trial court instructed the jury on the elements of
solicitation to commit theft of services, the defendant “waived [the] issue
regarding the legality of his conviction for solicitation when he failed to
object to the court’s instructions to the jury on the elements of the
offense”).
Thus, since Appellant failed to object to the trial court’s jury
instruction, Appellant “waived [the] issue regarding the legality of [her]
conviction for” “intentionally viewing” child pornography. Matty, 619 A.2d
at 1386-87. Moreover, since Appellant’s sufficiency of the evidence claim
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was logically dependent upon this Court concluding that the defect in the
Information precluded her conviction for “intentionally viewing” child
pornography, Appellant’s sufficiency of the evidence claim necessarily fails.
At any rate, Appellant’s sufficiency claim fails because the evidence
was sufficient to prove that Appellant “[k]nowingly possessed or controlled”
child pornography. As the trial court cogently explained:
Corporal Roche testified that [Appellant] presented herself
at the [Pennsylvania] State Police Barracks on August 14,
2013, with the subject computer. Corporal Roche further
testified that [Appellant] “was essentially bringing me the
computer because she wanted me to take a look at what
was on it because she wanted to tell me that there was
child pornography images on the computer and that they
were put there by her husband, Matthew Woods.” [N.T.
Trial, 8/19/14, at 31]. Finally, with regard to Corporal
Roche’s opinion about the nature of the images that he
found, he stated that he “found in excess of 40 images and
specifically 43 images of what I believed depicted child
pornography of some sort, whether it be the focal point of
the genital area of a person under the age of 18, certainly a
prepubescent person or they are engaged in sex of some
sort or simulation thereof or masturbation. These would all
meet the definition of child pornography. [Id. at 49].
Given the testimony of Corporal Roche, and viewing that
testimony in the light most favorable to the Commonwealth,
it is easy to see how the jury believed that [Appellant]
purposely downloaded images of child pornography on the
family’s computer for the purpose of reporting the presence
of the images to the Pennsylvania State Police, and all with
the goal of having Matthew Woods, her estranged husband,
charged with criminal offenses of a sexual nature. By
necessity, such a finding means that [Appellant] knowingly,
as defined in 18 Pa.C.S.A. [§ 302(b),] downloaded and
possessed images containing child pornography. In other
words, [Appellant] was aware of her conduct and the nature
of her conduct, because it was her express purpose to
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download child pornography, possess these images, and
take these images to the Pennsylvania State Police; her
plan would not [have] work[ed] without these actions.
Trial Court Opinion, 5/19/15, at 14-15 (some internal citations omitted).
We agree with the trial court. Therefore, we conclude that the
evidence was sufficient to support Appellant’s conviction for sexual abuse of
children under 18 Pa.C.S.A. § 6312(d)(1). Appellant’s claim to the contrary
fails.
For Appellant’s final claim on appeal, Appellant contends that the
evidence was insufficient to support her conviction for unsworn falsification
to authorities; the conviction was based upon the written statement that
Appellant made on August 14, 2013, in the Pennsylvania State Police
Barracks. Appellant’s claim on appeal is waived.
Appellant was convicted of unsworn falsification to authorities under
18 Pa.C.S.A. § 4904(a)(1). This section declares:
(a) In general.--A person commits a misdemeanor of the
second degree if, with intent to mislead a public servant in
performing his official function, he:
(1) makes any written false statement which he does
not believe to be true.
18 Pa.C.S.A. § 4904(a)(1).
As is apparent, before this Court may consider Appellant’s claim that
the evidence was insufficient to support her Section 4904(a)(1) conviction,
this Court must be able to review the entire written statement that Appellant
made on August 14, 2013. Yet, Appellant has failed to include the written
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statement in the certified record to this Court. Therefore, we must conclude
that Appellant’s final claim on appeal is waived. Commonwealth v.
Saranchak, 675 A.2d 268, 275 (Pa. 1996) (“[i]t is appellant’s responsibility
to ensure that any relevant related matter be filed or made part of the
original record” and, where appellant fails to ensure that the certified record
is sufficient to review the claims raised on appeal, the claims are waived);
Commonwealth v. Kennedy, 868 A.2d 582, 593 (Pa. Super. 2005) (“this
Court may not consider anything that is not part of the official certified
record: [a]ny document which is not part of the official certified record is
considered to be non-existent”) (internal quotations and citations omitted).
Judgment of sentence affirmed.
Panella, J. joins the decision.
Platt, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/11/2016
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