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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STEVEN LAWRENCE HURD
Appellant No. 1111 WDA 2015
Appeal from the Judgment of Sentence July 9, 2015
In the Court of Common Pleas of McKean County
Criminal Division at No(s): CP-42-CR-0000664-2014
BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.*
MEMORANDUM BY PANELLA, J. FILED JUNE 1, 2016
Appellant, Steven Lawrence Hurd, appeals from the judgment of
sentence entered July 9, 2015, in the Court of Common Pleas of McKean
County, following his conviction of criminal use of a communication facility.1
After review, we reverse Hurd’s judgment of sentence.
By information filed on December 11, 2014, Appellant was charged
with ten counts of possession of child pornography,2 ten counts of
dissemination of child pornography,3 and one count of criminal use of a
communication facility. At the close of the bench trial, Appellant made an
oral motion for judgment of acquittal of the ten counts of possession of child
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. § 7512(a).
2
18 Pa.C.S.A. § 6312(d).
3
18 Pa.C.S.A. § 6312(c).
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pornography and ten counts of dissemination of child pornography, at counts
1-20 of the information. The trial court granted Appellant’s motion for
judgment of acquittal as to those counts,4 but found Appellant guilty of the
remaining count of criminal use of a communication facility. At sentencing,
Appellant made an oral motion for extraordinary relief, requesting that the
trial court set aside the verdict due to insufficient evidence. The trial court
denied Appellant’s motion, and sentenced Appellant to 11½ to 21½ months’
incarceration. This timely appeal followed.
On appeal, Appellant argues that the evidence was insufficient to
support his conviction of criminal use of a communication facility.
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
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. [T]he facts and circumstances
established by the Commonwealth need not be absolutely
incompatible with the defendant's innocence. Any doubt about
the defendant's guilt is to be resolved by the fact finder unless
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4
Each count of possession of child pornography and dissemination of child
pornography charged in the information related to a specific computer file.
See Information, 12/11/14. Although the Commonwealth introduced into
evidence over 90 images of suspected child pornography at trial, the trial
court determined that the Commonwealth failed to associate a particular
image or file with its corresponding count charged in the information. See
N.T., Bench Trial, 6/1/15 at 86-87. The court further determined that the
Commonwealth failed to sufficiently establish that some of the images
constituted child pornography. See id.
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the evidence is so weak and inconclusive that, as a matter of
law, no probability of fact can be drawn from the combined
circumstances.
Commonwealth v. Mauz, 122 A.3d 1039, 1040-41 (Pa. Super. 2015)
(citation omitted).
The offense of criminal use of a communication facility is defined as
follows:
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 or under the act of April 14,
1972 (P.L. 233, No. 64), known as The Controlled Substance,
Drug, Device and Cosmetic Act. Every instance where the
communication facility is utilized constitutes a separate offense
under this section.
18 Pa.C.S.A. § 7512. Thus, to support of conviction under Section 7512, the
Commonwealth must establish beyond a reasonable doubt that
(1) Appellant[] knowingly and intentionally used a
communication facility; (2) Appellant[] knowingly, intentionally
or recklessly facilitated an underlying felony; and (3) the
underlying felony occurred. … Facilitation has been defined as
“any use of a communication facility that makes easier the
commission of the underlying felony.”
Commonwealth v. Moss, 852 A.2d 374, 382 (Pa. Super. 2004) (internal
citations omitted).
Here, although the Commonwealth introduced into evidence images of
alleged child pornography recovered from Appellant’s computer, the
Commonwealth failed to satisfy its burden of proof to support the occurrence
of the underlying felonies and the trial court granted Appellant’s motion for
judgment of acquittal of the possession and dissemination of child
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pornography charges. “If the underlying felony never occurs, then [an
Appellant has] facilitated nothing and cannot be convicted under § 7512.”
Id., at 382. Absent proof beyond a reasonable doubt that Appellant
committed or facilitated the commission of an underlying felony, his
conviction of criminal use of a communication facility cannot stand.
Judgment of sentence reversed. Appellant discharged. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/1/2016
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