Com. v. Osche, A.

J-S68011-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

ANTHONY PETER OSCHE,

Appellant No. 1731 WDA 2015

Appeal from the Judgment of Sentence October 5, 2015
In the Court of Common Pleas of Butler County
Criminal Division at No(s): CP-10-CR-0002166-2013

BEFORE: SHOGAN, SOLANO, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 18, 2016

Appellant, Anthony Peter Osche, appeals from the judgment of

sentence entered on October 5, 2015, in the Butler County Court of Common

Pleas. We affirm.

The record reflects that in August of 2013, Special Agent Duane Tabak

(“Agent Tabak”) of the Pennsylvania Office of Attorney General, Child

Predator Section, was engaged in investigating peer-to-peer file sharing of

suspected child pornography.1 N.T. Trial, 2/9/15, at 106-109. This

____________________________________________

*
Retired Senior Judge assigned to the Superior Court.
1
Child pornography is defined as “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[.]” 18 Pa.C.S. § 6312(d).
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investigation uncovered internet distribution of suspected child pornography,

and it led Agent Tabak to secure a court order to uncover the internet

subscriber’s identity, physical address, and internet protocol (“IP”) address.

Id. at 109-118. Once Agent Tabak learned the name and physical address,

he obtained a search warrant. Id. at 119. When Agent Tabak executed the

search warrant, there were several people present at the house including

Appellant, Appellant’s father, Appellant’s step-mother, Appellant’s step-

sister, and Appellant’s grandparents. Id. at 120. The Agents located a

computer and external hard drive in Appellant’s bedroom. Id. at 121. A

forensic examination of those devices uncovered pictures and videos of

suspected child pornography and evidence that the computer had been used

to disseminate the files containing the suspected child pornography. Id. at

125. The investigation uncovered more than 1,300 video files. Id. at 127.

All of the suspected child pornography was discovered on computer devices

located solely in Appellant’s bedroom. Id. at 137.

Appellant was arrested and advised of his rights pursuant to Miranda

v. Arizona, 384 U.S. 436 (1966). N.T., Trial, 2/9/15, at 138. Appellant

then signed a form memorializing that he understood his rights. Id. After

signing the form, Appellant agreed to speak to Agent Tabak, and he

admitted to viewing child pornography. Id. at 138-139. Additionally,

Appellant’s computer revealed the file-sharing program through which Agent

Tabak initially obtained the shared images of child pornography. Id. at 140.

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Appellant was charged with five counts of distribution of child

pornography, thirty counts of possessing child pornography, and one count

of criminal use of a communication facility.2 On January 29, 2014, Appellant

filed a motion for an extension of time in which to file an omnibus pretrial

motion. On January 30, 2014, the trial court granted Appellant’s motion and

provided Appellant an additional thirty days in which to file a timely omnibus

motion. Despite this extension of time, Appellant failed to file an omnibus

motion.

The case was scheduled for trial but was continued several times. On

February 4, 2015, Appellant filed a motion in limine. In this motion,

Appellant sought to exclude, inter alia, his confession. The trial court

scheduled a hearing on the motion in limine, and following the hearing, the

court denied Appellant’s request to exclude his confession. The court

concluded that the motion to suppress was untimely as it should have been

filed in an omnibus motion. Order, 2/9/15.

A two-day jury trial began on February 9, 2015. At trial, Appellant

stipulated that the images and video files recovered from the computer

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2
We note that Appellant was charged under a prior version of 18 Pa.C.S. §
6312 with committing the crimes of sexual abuse of children, distribution of
child pornography (18 Pa.C.S. § 6312(c)(1)), and sexual abuse of children,
possessing child pornography (18 Pa.C.S. § 6312(d)(1)). On January 1,
2014, 18 Pa.C.S. § 6312 was amended, and 18 Pa.C.S. § 6312(c)(1) and 18
Pa.C.S. § 6312(d)(1) were renumbered as 18 Pa.C.S. § 6312(c) and 18
Pa.C.S. § 6312 (d) respectively, without changes to the language.

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seized at his house were child pornography. N.T. Trial, 2/9/15, at 42. At

the close of the Commonwealth’s case, Appellant moved for a judgment of

acquittal. Id. at 185. Counsel for Appellant argued that there was

insufficient evidence to establish that the computer devices upon which the

child pornography was found belonged to Appellant. Id. at 186. The trial

court denied Appellant’s motion. Id. at 187. Appellant also objected to the

jury being permitted to take still photographs to the jury room during

deliberations. Id. at 195. These photographs were of scenes from the

videos depicting children engaged in sexual activity. Id. The trial court

overruled Appellant’s objection and allowed the jury to take the still images

to the jury room; however, the trial court noted that it would provide a

limiting instruction. N.T. Trial, 2/10/15, at 2.

Following deliberations, the jury found Appellant guilty of all thirty-six

counts. N.T. Trial, 2/10/15, at 35-36. On October 5, 2015, Appellant was

adjudged to be a sexually violent predator. N.T. Sentencing, 10/5/15, at 3.

The trial court applied the mandatory minimum sentence of twenty-five

years for recidivist sexual offenders under 42 Pa.C.S. § 9718.2, as Appellant

had a prior conviction for violating 18 Pa.C.S. § 6312(d)(1) (possessing child

pornography), in 2009.3 Id. at 6. The trial court then sentenced Appellant

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3
18 Pa.C.S. § 6312(d)(1), now 18 Pa.C.S. § 6312(d), is an enumerated
offense under 42 Pa.C.S.A. § 9799.14 for purposes of the mandatory
recidivist sentencing provisions in 42 Pa.C.S. § 9718.2.

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to thirty-five concurrent terms of twenty-five to fifty years of incarceration at

counts one through thirty-five. On count thirty-six, criminal use of a

communication facility, the trial court imposed no further penalty. Id. at 7.

This resulted in an aggregate sentence of twenty-five to fifty years of

incarceration.

On October 30, 2015, Appellant filed an appeal to this Court. Both the

trial court and Appellant have complied with Pa.R.A.P. 1925. In his appeal,

Appellant raises three issues for this Court’s consideration:

I. Whether the trial court erred in denying Appellant’s motion
in limine and allowing Appellant’s confession to be
introduced despite the confession not being voluntary and
being elicited as part of a plea negotiation initiated by an
agent of the Attorney General’s Office?

II. Whether the trial court erred by permitting still
photographs of the alleged children to be introduced and
provided to the jury despite a stipulation by the defense as
to the nature and content of the photos?

III. Whether 42 Pa.C.S. § 9718.2, which provides for a
mandatory 25 year sentence upon a second conviction for
an offense under [42 Pa.C.S.] § 9799.14, is
unconstitutional and violates the Eigth [sic] Amendment
against cruel and unusual punishment?

Appellant’s Brief at 16 (full capitalization omitted).

In his first issue, Appellant asserts that the trial court erred in denying

his motion in limine wherein he sought to suppress his confession. We point

out that the admissibility of evidence is within the sound discretion of the

trial court, and we will not reverse a trial court’s decision concerning

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admissibility of evidence absent an abuse of the trial court’s discretion.

Commonwealth v. Estepp, 17 A.3d 939, 945 (Pa. Super. 2011).

Here, however, Appellant did not file an omnibus motion to suppress

under Pa.R.Crim.P. 578. Rather, after the time had passed to file an

omnibus motion, Appellant sought to suppress his confession through a

motion in limine.

Our Rules of Criminal Procedure provide as follows:

Unless the opportunity did not previously exist, or the interests
of justice otherwise require, such motion shall be made only
after a case has been returned to court and shall be contained in
the omnibus pretrial motion set forth in Rule 578. If timely
motion is not made hereunder, the issue of suppression of such
evidence shall be deemed to be waived.

Pa.R.Crim.P. 581(B). A criminal defendant has thirty days from the date of

his arraignment to file a timely omnibus pretrial motion. Pa.R.Crim.P.

579(A). However, as noted, the trial court may consider an untimely

suppression motion if “the opportunity did not previously exist, or the

interests of justice otherwise require[.]” Pa.R.Crim.P. 581(B). The

determination of “[w]hether the opportunity did not previously exist or the

interests of justice otherwise require is a matter for the discretion of the trial

judge.” Commonwealth v. Long, 753 A.2d 272, 279 (Pa. Super. 2000).

As noted by the trial court in its opinion:

In the case at hand, arraignment was held on December 31,
2013. On January 2, 2014, defense counsel filed an Informal
Request for Discovery. The Commonwealth provided discovery
on January 22, 2014. On January 29, 2014, defense counsel filed
a Motion for Extension of Time to File Omnibus Pre-Trial Motion.

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On January 30, 2014, the court granted the motion and gave the
defense thirty (30) additional days to file an omnibus pretrial
motion. Defense counsel never filed an omnibus pretrial motion.

Trial Court Opinion, 2/3/16, at 2. Rather, Appellant waited until five days

before trial to file a motion in limine seeking to suppress his confession.

There is no indication in that motion that there was any reason for the delay,

and we discern no abuse of discretion in the trial court’s denial of Appellant’s

untimely motion to suppress. Accordingly, Appellant’s claim fails.

Assuming, arguendo, that Appellant had properly filed a motion to

suppress and the trial court denied that motion, we would still conclude that

no relief is due.

In reviewing a ruling on a suppression motion, our standard of
review is whether the factual findings and the legal conclusions
drawn therefrom are supported by the evidence. We are bound
by the factual findings of the suppression court supported by the
record, but we are not bound by the suppression court’s legal
rulings, which we review de novo. Further, the reviewing court
may consider only the Commonwealth’s evidence and so much of
the evidence for the defense as remains uncontradicted when
read in the context of the entire record.

Commonwealth v. Irvin, 134 A.3d 67, 71 (Pa. Super. 2016) (citations

omitted). Moreover, 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 1073, 1086 (Pa. 2013).

Appellant argues that his confession should have been suppressed

because it was not voluntary and was obtained during plea negotiations.

Appellant’s Brief at 27. We disagree.

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Despite Appellant’s suppression motion being raised improperly in a

motion in limine, the trial court did hear argument and take testimony on

the motion. N.T. Trial, 2/9/14, at 11-80. The trial court viewed the video of

the confession and Agent Tabak’s interview with Appellant. Id. As noted

above, after Appellant was arrested, he was apprised of his rights and signed

a form indicating that he understood them. Id. at 26-30. Appellant then

proceeded to speak with Agent Tabak and admitted possessing child

pornography. Id. at 28-30, 39. Agent Tabak testified that there was no

plea discussion, no promises made, and no representation made to Appellant

that the agent was an attorney. Id. at 26-30. The trial court ultimately

denied Appellant’s motion in limine, albeit on grounds that it was an

untimely suppression motion. Id. at 78. Nevertheless, if Appellant had filed

a timely motion to suppress his confession, and the trial court had denied it

based on the record compiled during the motion in limine hearing, there was

ample evidence upon which the trial court could have relied in denying a

motion to suppress, and we would conclude that there was no abuse of

discretion.

In his second issue, Appellant argues that the trial court erred in

allowing the jury to take still photographs depicting scenes of child

pornography from the video files into the jury room during deliberations over

Appellant’s objection. The trial court overruled the objection and concluded

that it was within its discretion to allow the jury to have those photos, the

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photos were not cumulative, and the jury was instructed not to let the

photos “stir up your emotions to prejudice [Appellant].” Trial Court Opinion,

2/3/16, at 2.

We note that the determination of “[w]hether an exhibit should be

allowed to go out with the jury during its deliberation is within the sound

discretion of the trial judge.” Commonwealth v. Barnett, 50 A.3d 176,

194 (Pa. Super. 2012); Pa.R.Crim.P. 646(A). Rule 646 does not prohibit the

jury from having photo exhibits during deliberation. Therefore, we are not

confronted with a violation of the rule; instead, we are faced with a

discretionary ruling. Compare Commonwealth v. Terry, 462 A.2d 676,

679 (Pa. 1983) (rejecting the contention that a violation of former

Pa.R.Crim.P. 1114, renumbered Pa.R.Crim.P. 646, can be harmless error)

(emphasis added).

Because there was a stipulation as to the contents of the video files

and still photos and the fact that Appellant conceded those images

constituted child pornography, the utility of the jury’s retention of the

photographs is questionable. Nevertheless, after careful review, we

conclude that any abuse of discretion in allowing the jurors to retain the

photographs during deliberation was harmless. As our Supreme Court has

stated, “The harmless error doctrine, as adopted in Pennsylvania, reflects

the reality that the accused is entitled to a fair trial, not a perfect trial.”

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Commonwealth v. Hairston, 84 A.3d 657, 671 (Pa. 2014) (citation

omitted).

Harmless error exists if the record demonstrates either: (1) the
error did not prejudice the defendant or the prejudice was de
minimis; or (2) the erroneously admitted evidence was merely
cumulative of other untainted evidence which was substantially
similar to the erroneously admitted evidence; or (3) the
properly admitted and uncontradicted evidence of guilt was so
overwhelming and the prejudicial effect of the error was so
insignificant by comparison that the error could not have
contributed to the verdict.

Id. at 671-672 (citation and quotation marks omitted).

As noted above, Appellant stipulated that the files found on the

computer constituted child pornography. N.T. Trial, 2/9/15, at 42. We are

constrained to point out that if an image is, by definition, child pornography,

an element of the crimes charged was established.4 In other words, there

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4
Distribution and possession of child pornography are defined in the Crimes
Code as follows:

(c) Dissemination of photographs, videotapes, computer
depictions and films.--Any person who knowingly sells,
distributes, delivers, disseminates, transfers, displays or exhibits
to others, or who possesses for the purpose of sale, distribution,
delivery, dissemination, transfer, display or exhibition to others,
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.

(d) Child pornography.--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 years engaging in
(Footnote Continued Next Page)

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was nothing else the Commonwealth was required to prove in order to

establish that the images were depictions of children, under the age of

eighteen years, engaged in a prohibited sexual act or in the simulation of

such act, and therefore, child pornography. 18 Pa.C.S. § 6312(c) and (d).

The Commonwealth had to prove only that Appellant knowingly possessed

and/or distributed the prohibited images. Id. Our conclusion is supported

by the fact that Appellant’s sole argument with respect to the elements of

the crimes was that the Commonwealth failed to connect Appellant to the

pornographic images of children. N.T. Trial, 2/9/15, at 186. Additionally,

we point out that the still images were immaterial as to grading of the

crimes because Appellant was a repeat offender under 42 Pa.C.S. §9718.2

and subject to a mandatory minimum of twenty-five years at each count of

possessing or disseminating child pornography.5 Thus, we are convinced

that any error was harmless.

_______________________
(Footnote Continued)

a prohibited sexual act or in the simulation of such act commits
an offense.

18 Pa.C.S. § 6312(c) and (d).
5
We note that the images in the still photographs could be relevant as to
gradation of an offense if Appellant were a first-time offender. See 18
Pa.C.S. § 6312(d.1)(3) (“When a person commits an offense graded under
paragraph (1) or (2)(i) and indecent contact with the child as defined in
section 3101 (relating to definitions) is depicted, the grading of the offense
shall be one grade higher than the grade specified in paragraph (1) or
(2)(i).”). However, because Appellant is a repeat offender and subject to a
twenty-five-year mandatory minimum sentence, the increase in gradation of
(Footnote Continued Next Page)

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In his third issue, Appellant argues 42 Pa.C.S. § 9718.2, which

provides for a mandatory twenty-five-year sentence for a second conviction

for an offense enumerated in 42 Pa.C.S. § 9799.14, is unconstitutional as

cruel and unusual punishment prohibited by the Eighth Amendment to the

United States Constitution. Appellant’s Brief at 36. We conclude that this

claim is meritless.

In Commonwealth v. Baker, 78 A.3d 1044 (Pa. 2013), the

Pennsylvania Supreme Court addressed the constitutionality of 42 Pa.C.S. §

9718.2, and the application of a twenty-five-year mandatory minimum for a

second conviction of possessing child pornography. The Supreme Court

began its analysis by stating: “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.” Id. at 1047.

In Commonwealth v. Spells, 417 Pa. Super. 233, 612
A.2d 458, 462 (1992) (en banc), the Superior Court applied the
three-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
_______________________
(Footnote Continued)

the offenses for depictions of indecent contact noted in 18 Pa.C.S. §
6312(d.1)(3) is inapplicable.

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jurisdictions.” Spells, 612 A.2d at 462 (quoting Solem, 463 U.S.
at 292, 103 S.Ct. 3001).

Id.

Just as in Baker, Appellant argues that he only possessed the videos,

and he did not personally touch a child or produce the videos. Appellant’s

Brief at 39. The Baker Court addressed this same “minimizing” argument

as follows:

After careful reflection, we agree [with the
Commonwealth] that Appellant’s crime is much graver than the
simple possession of so-called “dirty pictures” where there is no
direct victim. Images of child pornography are images of child
sexual abuse and exploitation; each image represents a
victimized child, and there can be no dispute that those who
exploit and abuse children commit very grave offenses. The
essence of Appellant’s argument with respect to gross
disproportionality is that because he himself did not engage in
any sexual abuse or exploitation of children, his crime does not
warrant a 25–year mandatory minimum sentence, and the 25–
year sentence of imprisonment imposed raises an inference of
gross disproportionality when compared to his crime. See
Appellant’s Brief at 11–12 (“What Baker did was possess the
images. And for twice being convicted of this simple possession
of these prohibited images, he was sentenced to a mandatory
minimum of 25 years in prison.”)

We disagree that Appellant’s offense is a simple, non-
serious, possessory offense. It bears repeating here that
Appellant was sentenced under a recidivist sentencing scheme.
The fact that Appellant is a repeat offender certainly goes to the
gravity of his instant offense. Equally importantly, we cannot
view Appellant’s crimes as he suggests, in a manner that
detaches them from the devastating victimization that child
pornography produces. Appellant’s participation in the criminal
subculture of viewing images of child sexual abuse for personal
gratification is part and parcel of that victimization. Appellant’s
crime is his continued participation as an enabler of sexual
crimes against children via his status as a possessor of child
pornography. Although Appellant did not personally commit the

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underlying sexual abuse, he was certainly a willing voyeuristic
participant in its commission after the fact, and it is his demand
to possess images of child sexual abuse which permits and, to an
extent, causes, the production of child pornography. It is
unacceptably inaccurate to characterize or label Appellant’s
crime as the simple possession of “dirty pictures” or the use of
an outlaw product. His crime is more accurately understood as
secondary or indirect participation in the sexual abuse and
exploitation of innocent children for personal gratification. That is
a very serious and grave offense. …

The gravity of the offense, of course, must be compared to
the punishment imposed in order to determine whether an
inference of gross disproportionality is raised. The sentence here
is 25 to 50 years’ imprisonment, imposed on May 12, 2009, with
credit for time-served from March 15, 2007. Thus, Appellant,
who was thirty-three years of age on the date of sentencing, will
be fifty-six years of age at the expiration of his minimum term of
imprisonment, and eighty-one years of age at the expiration of
his maximum sentence. This is an indeterminate sentence of
years with the possibility of parole at some point following
expiration of the mandatory minimum sentence. While clearly a
lengthy sentence, presuming Appellant will experience an
average longevity, the sentence here is not tantamount to a life
sentence without the possibility of parole which the High Court
struck down in Solem, supra, as grossly disproportionate to the
recidivist non-violent offense of passing a bad check in the
amount of $100.

In sum, we determine that a threshold comparison of the
gravity of a second conviction of possessing and viewing child
pornography against the imposition of a mandatory sentence of
at least 25 years’ imprisonment does not lead to an inference of
gross disproportionality. Thus, we need not reach the second
and third prongs of the test for proportionality review under the
Eighth Amendment, and accordingly, we affirm.

Baker, 78 A.3d at 1051-1052 (internal footnote and some citations

omitted).

The Baker decision is directly applicable to the case at bar. As

discussed, Appellant was a repeat offender under 42 Pa.C.S. § 9799.14 and

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subject to the mandatory twenty-five-year minimum sentence under 42

Pa.C.S. § 9718.2. While Appellant may not have physically touched the

children in the videos or produced the videos himself, those facts do not

minimize the gravity of his crimes. Baker, 78 A.3d at 1052. Moreover,

Appellant was twenty-five years old when he was sentenced. Just as in

Baker, Appellant was sentenced to an aggregate term of twenty-five to fifty

years of incarceration and will be eligible for parole at the expiration of his

minimum sentence when he is fifty years old.6 As set forth above, the

Supreme Court concluded that, under similar circumstances, the recidivist

sentencing statute, 42 Pa.C.S. § 9718.2, is not grossly disproportional to the

crimes charged. Because we are bound by decisions of our Supreme Court,7

we conclude that Appellant is entitled to no relief on his challenge to the

constitutionality of 42 Pa.C.S. § 9718.2. See Commonwealth v. Colon-

Plaza, 136 A.3d 521, 532 (Pa. Super. 2016) (noting that Baker is binding

upon this Court, and rejecting an appellant’s challenge to the

constitutionality of 42 Pa.C.S. § 9718.2 based on gross disproportionality).

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6
We note also that Appellant may be eligible for parole before he is fifty-
years old because he received credit for time served. N.T., Sentencing,
10/5/15, at 7.
7
See Commonwealth v. Volk, 138 A.3d 659, 663 (Pa. Super. 2016)
(quoting Commonwealth v. Friday, 90 A.2d 856, 859 (Pa. Super. 1952)
(“Superior Court is bound by the decisions of the Supreme Court of
Pennsylvania.”)).

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For the reasons set forth above, we discern no basis upon which to

disturb Appellant’s judgment of sentence. Accordingly, the judgment of

sentence entered on October 5, 2015, is affirmed.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/18/2016

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