Commonwealth v. Sauers

J-A04012-17

2017 PA Super 84

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

NATHAN ROBERT SAUERS,

Appellant No. 3123 EDA 2015

Appeal from the Judgment of Sentence June 16, 2015
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0002645-2013

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

OPINION BY SHOGAN, J.: Filed March 29, 2017

Nathan Robert Sauers (“Appellant”) appeals from the judgment of

sentence entered on June 16, 2015, in the Monroe County Court of Common

Pleas. We affirm the convictions, vacate in part the judgment of sentence,

and remand for re-sentencing.

On August 4, 2013, Monroe County Detective Brian Webbe was using a

proprietary police version of the Ares peer-to-peer file-sharing network1

____________________________________________

*
Retired Senior Judge assigned to the Superior Court.
1
“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.” Commonwealth v. Colon-Plaza, 136 A.3d 521, 524 n.4 (Pa.
Super. 2016).
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known as Ares Round-up Software (“software”) to investigate on-line child

pornography. During his search, Detective Webbe identified a computer

with an IP address of 50.29.128.171 and a username of “FromK9to5” as

containing downloaded child pornography. The detective downloaded ten

files from the suspect computer. Armed with a court order, Detective Webbe

identified Appellant as the owner of the IP address and username. Upon

execution of a search warrant at Appellant’s home, Detective Webbe found

Appellant’s Dell laptop computer. Because no child pornography was

immediately discovered on the computer, Detective Webbe used forensic

software to examine the computer. He found files indicating that Appellant’s

computer had recently downloaded the Ares program and that the program

had been used to view, download, and share child pornography.

Appellant was charged with ten counts of possession of child

pornography, ten counts of dissemination of child pornography, and one

count of criminal use of a communications facility.2 Following a more in-

depth examination of Appellant’s computer, Detective Webbe found an

additional eighty-seven files containing child pornography in the unallocated

space of Appellant’s computer. Consequently, Appellant was charged under

a separate docket with eighty-seven counts of possession of child

pornography. The cases were joined for trial.

____________________________________________

2
18 Pa.C.S. § 6312(c), (d), and § 7512, respectively.

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A jury convicted Appellant on all eleven counts on the first docket, and

it acquitted him of the eighty-seven counts on the second docket. The trial

court sentenced Appellant to incarceration for an aggregate term of sixty to

120 months. Additionally, the trial court designated Appellant as a Tier III

sexual offender and directed his compliance with the lifetime reporting

requirements of the Sexual Offender Registration and Notification Act

(“SORNA”), 42 Pa.C.S. §§ 9799.10–9799.41. Appellant filed post-sentence

motions, which the trial court denied. Appellant filed a timely appeal. He

and the trial court complied with Pa.R.A.P. 1925.

On appeal, Appellant raises the following questions for our review:3

1. Whether the trial court abused its discretion when it admitted
into evidence video evidence of child pornography and
photographic evidence of child pornography without first
viewing the entire content prior to publishing same to the jury
thereby inflaming the passions of the jury, and thus, denying
[A]ppellant a fair trial.

2. Whether the failure of the Commonwealth to provide and/or
allow forensic evaluation of their “Modified Ares – Round-
up[”] Software denied [A]ppellant a fair trial under Article I
Section 9 of the Pennsylvania Constitution, and the 6 th and
14th Amendment[s] of the United States Constitution,
____________________________________________

3
Appellant’s Pa.R.A.P. 1925(b) statement filled five pages and consisted of
eighteen paragraphs, several of which had multiple subparts. The trial court
deemed most of the issues waived on the basis of the statement’s
imprecision and vagueness, and the remaining issues meritless. Trial Court
Opinion, 1/19/16, at 10, 11. Additionally, Appellant’s brief fails to include a
copy of the trial court’s opinion or a Rule 1925(b) statement of errors, as
required under Pa.R.A.P. 2111(a)(10) and (11). Although we do not
condone these defects, they do not prevent effective appellate review in this
case; therefore, we will address Appellant’s issues.

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AND

Whether the Commonwealth’s claim that the “Modified
Ares – Round-up[”] Software is proprietary, and thus
not subject to distribution or review by outside
computer forensic experts denied [Appellant] a fair trial
by preventing [Appellant] from confronting the evidence
against himself at trial under the Pennsylvania
Constitution, Article 1 Section 9, and the “confrontation
clause” of [the] 6th Amendment of the United States
Constitution.

3. Whether the evidence was sufficient to support the verdict
that [Appellant] actually possessed and/or disseminated child
pornography.

4. Whether the trial court’s jury instructions regarding the
definition of possession which included the trial court judge’s
own instruction ignored other jurisdictions definitions of
possession, and denied [Appellant] a fair trial under both
Article I Section 9 of the Pennsylvania Constitution and the 6th
Amendment of the United States Constitution.

5. Does a trial court deny a defendant a fair trial under Article I
Section 9 of the Pennsylvania Constitution, Sixth Amendment,
and the Fourteenth Amendment of the United States
Constitution where it denies individual voir dire in a child
pornography case where: the social prejudices associated
with child pornography in a public forum voir dire denies a
defendant the ability in vetting individual jurors regarding
social, religious and personal prejudices on the subject of
child pornography?

6. Whether the sentencing court abused its discretion where it
made repeated references during sentencing, trial, and
pretrial to the fact that [Appellant] made the trial court and
the jurors see the child pornography during his trial, and
thus, subjected the jury to being victims themselves.

7. Whether the sentencing court abused its discretion wherein
the record demonstrates repeatedly that the sentencing court
punished [Appellant] for taking his case to trial.

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8. Whether the trial court abused its discretion where it used a
far more egregious case as its reasons and justifications for
imposing the sentence it did upon [Appellant].

9. Whether the sentencing court abused its discretion where it
imposed incarceration upon [Appellant] (a first time
offender[)] where the very case the sentencing court used to
justify its sentence was a case involving a recidivist offender.

Appellant’s Brief at 7–8 (renumbered).

Appellant first challenges the admission of the Commonwealth’s

photographic and video evidence of child pornography. With regard to the

admission of evidence:

we give the trial court broad discretion, and we will only reverse
a trial court’s decision to admit or deny evidence on a showing
that the trial court clearly abused its discretion. An abuse of
discretion is not merely an error in judgment, but an overriding
misapplication of the law, or the exercise of judgment that is
manifestly unreasonable, or the result of bias, prejudice, ill-will
or partiality, as shown by the evidence or the record.

Commonwealth v. Flamer, 53 A.3d 82, 86 (Pa. Super. 2012) (citations

and quotation marks omitted). The trial court will be reversed only if an

error in the admission of evidence contributed to the verdict.

Commonwealth v. Konias, 136 A.3d 1014, 1022 (Pa. Super. 2016),

appeal denied, 145 A.3d 724 (Pa. 2016).

Admissibility depends on relevance and probative value.
Evidence is relevant if it logically tends to establish a material
fact in the case, tends to make a fact at issue more or less
probable, or supports a reasonable inference or presumption
regarding a material fact. Once evidence is found to be relevant,
it will be inadmissible only if its probative value is substantially
outweighed by the danger of unfair prejudice or confusion.

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Commonwealth v. Lilliock, 740 A.2d 237, 244 (Pa. Super. 1999)

(quotation marks and citations omitted); Pa.R.E. 403.

Appellant claims the trial court erred as “gate-keeper” when, prior to

publishing the materials to the jury, the trial court viewed three still images

and four videos that the Commonwealth intended to introduce but then

allowed the Commonwealth to admit all of the videos, and, thereby “exposed

the jury to hig[h]ly prejudicial and inflame[m]atory evidence without viewing

[it] prior to showing it to the jury.” Appellant’s Brief at 11 (citing N.T.,

3/3/15, at 76–88, 184–202; United States v. Cunningham, 694 F.3d 372

(3rd Cir. 2012)). Additionally, Appellant argues, admission of ninety-seven

images and videos, when Appellant was willing to stipulate to their content,

was prejudicial, cumulative, and not harmless error. Id. at 10, 12, 13.

In response, the Commonwealth explains, “[I]n an effort to minimize

any potential prejudicial effect, the Commonwealth sought to introduce only

a sample of the [challenged] evidence and not the entire ‘collection.’”

Commonwealth’s Brief at 9. Moreover, although it was not required to do

so, the Commonwealth would have agreed to Appellant’s stipulation that the

remaining images constituted child pornography, but Appellant refused to

stipulate. Consequently, the Commonwealth considered it necessary to

show all of the images to sustain its burden. Id.; N.T., 3/3/15, at 12, 74.

The trial court addressed this issue on the pretrial record as follows:

You can’t just say I object to all [of] the Commonwealth’s
evidence that it may or may not put in and have a judge make a

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peremptory ruling. What you can do is to say that if –– which is
what both of you said this morning –– is that within that
evidence there are some individual depictions, some individual
videos that you believe that under no circumstance should come
into this case and if you want to identify them and have me rule
on them now I will; but I’m not going to rule on in the abstract
what the Commonwealth may or may not put into evidence.

* * *

If I took your argument to its logical conclusion then in
every criminal case the [c]ourt should have a pre-hearing
conference, ask the Commonwealth to trot out it’s [sic]
evidence, lay it out on the table, play it on a TV screen, get a
tape recorder out here and play the audios, either get people to
come in and give their testimony or provide a summary on it and
then decide ahead of time what’s admissible and what’s not
admissible.

I understand that that’s the logical full conclusion to what
you’re arguing. I understand that the [c]ourt ultimately has to
be the arbiter of what’s fair or not; but the [c]ourt just doesn’t
go out and do things otherwise we don’t need a defense and the
Commonwealth[;] we just look at the evidence ourselves and
decide it.

* * *

This is sort of classic child pornography, and so in a child
pornography case showing those seven, three of which were
photos, none of which are unduly long, all of which are
disturbing, doesn’t to me convert this into something that’s
prejudicial to the point where the prejudicial outweighs the
probative value.

N.T., 3/3/15, at 61, 70, 85. Upon review of the record, we agree with the

trial court and conclude that Appellant’s first issue lacks merit.4

____________________________________________

4
“To the extent our legal reasoning differs from the trial court’s, we note
that as an appellate court, we may affirm on any legal basis supported by
(Footnote Continued Next Page)

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The Commonwealth sought to sustain its burden of proof by

introducing the videos and photographs of child pornography recovered from

Appellant’s computer. N.T., 3/3/15, at 83. Appellant did not file a pretrial

request to exclude specific videos or photographs. Id. at 23–25, 60, 67–68,

71, 73. Rather, on the eve of trial, Appellant sought to preclude the

introduction of the Commonwealth’s entire evidentiary collection by

stipulating to its content. Id. at 60–61. In response, the parties agreed to

a sample viewing by the trial court of four videos and three photographs

(“sample evidence”). Id. at 65–81, Exhibit 9. Appellant then objected to

the sample evidence as unduly prejudicial. Id. at 82. Applying a “regular

evidentiary prejudice vs. probative balancing analysis,” the trial court ruled

that it would allow the Commonwealth to present the sample evidence. Id.

at 16–18, 85. As to the Commonwealth’s remaining videos and photographs

(“remaining evidence”), the trial court declined to rule on their admissibility

until an issue arose at trial. Id. at 86.

During trial, the Commonwealth moved for admission of the sample

evidence on a DVD and for admission of the remaining evidence on a thumb

drive. N.T., 3/4/15, at 163–164, Exhibits 9 and 10, respectively. The trial

court recognized Appellant’s continuing objection to the sample evidence,

and Appellant raised no objection to the remaining evidence. Id. at 164.
_______________________
(Footnote Continued)

the certified record.” Commonwealth v. Williams, 125 A.3d 425, 433 n.8
(Pa. Super. 2015).

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The Commonwealth then published the sample evidence to the jury through

Detective Webbe. Id. at 184–189, Exhibit 9. To avoid having to publish the

remaining evidence, the prosecutor specifically asked defense counsel at a

side bar if Appellant would stipulate that the remaining evidence constituted

child pornography. Id. at 190. Defense counsel responded, “We can’t

stipulate.” Id. Therefore, the Commonwealth published the remaining

evidence to the jury, and Appellant did not object. Id. at 191–199, Exhibit

10.

Based on the record before us and our deferential standard of review,

we discern no error in judgment or manifestly unreasonable exercise of

judgment, no overriding misapplication of the law, no bias, prejudice, ill-will,

or partiality by the trial court. Flamer, 53 A.3d at 86. With Appellant’s

consent, the trial court previewed the sample evidence, applied a prejudice-

versus-probative-value balancing analysis, set parameters for publication of

the evidence to the jury, and enforced those parameters at trial. Trial Court

Opinion, 1/19/16, at 14 n.5; N.T., 3/3/15, at 76–80; N.T., 3/4/15, at 166–

169, 184–189, Exhibit 9. We approve of the trial court’s procedure. See

Commonwealth v. Hicks, 91 A.3d 47, 54 (Pa. 2014) (holding that the

balancing of probative value and prejudice is generally better left for trial,

but may be appropriate in some pretrial situations). Moreover, the

Commonwealth was not required to shelve its entire collection by accepting

a defense stipulation designed to protect Appellant from the publication of

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disturbing images to the jury. Accord Commonwealth v. Evans, 348 A.2d

92 (Pa. 1975) (holding that the Commonwealth may use any “proper”

evidence to prove its case, and does not have to accept the accused’s

stipulations); Commonwealth v. Stanley, 446 A.2d 583 (Pa. 1982) (citing

Evans). Furthermore, the evidence was not cumulative as “each image of

child pornography possessed by an individual is a separate, independent

crime under Section 6312.” Commonwealth v. Jarowecki, 985 A.2d 955,

961 n.10 (Pa. 2009) (citation and quotation marks omitted).

Additionally, as the trial court explained, any perceived error in the

admission of the video and photographic evidence did not result in prejudice

to Appellant:

if allowing the Commonwealth to introduce evidence of the child
pornography or our failure to view all of it first truly inflamed the
passions of the jury to the point where a guilty verdict was
inevitable, the opportunity for a fair trial was removed, and the
jurors could not, individually or collectively, be fair and impartial,
we would have expected that [Appellant] would have been
convicted in both cases.5 . . .
5
[Appellant’s] argument is premised, in part, on the
fact that we did not view all of the child pornography
first. However, we did review a sample before trial
began, set parameters for how the Commonwealth
would be permitted to show the images and videos,
and enforced the parameters during trial. (N.T.H.,
3/3/15, pp. 76–80); (N.T., 3/4/15, pp. 184–189).
Further, despite [Appellant’s] protestations to the
contrary, there is no ruling requiring the [c]ourt to
preview and rule pre-trial on evidence. In the
context of [Appellant’s] argument, the guiding
evidentiary principle is that the evidence must be
probative and its probative value must outweigh any
prejudicial impact. As discussed in the text, the

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acquittal in the companion case demonstrates that
the images and videos were not unduly prejudicial.

However, [Appellant] was not convicted in both cases. His
acquittal in the companion case amply demonstrates that the
jurors’ passions were not inflamed and that any error in ruling
we may be deemed to have made did not prejudice him to the
point where he was constitutionally denied a fair trial. Absent
the prejudice and harm he claims, [Appellant’s] assignments of
error are bootless.

Trial Court Opinion, 1/19/16, at 14–15.

In sum, we conclude that the trial court did not err as gate-keeper

when it previewed the sample evidence and was prepared to rule at trial on

any defense objections to the remaining evidence. Thus, Appellant’s

challenge to the admission of the sample evidence lacks merit. As for the

remaining evidence, our review of the trial transcript reveals that the

defense did not offer a timely and specific objection to its admission before

or during the trial. N.T., 3/4/15, at 164, 191–199, Exhibit 10. “Such failure

to offer a timely and specific objection results in waiver of this claim.”

Commonwealth v. Bruce, 916 A.2d 657, 670 (Pa. Super. 2007) (citation

omitted).5

____________________________________________

5
Even if we were to find a challenge to the remaining evidence preserved,
Appellant stipulated that the remaining evidence depicted child pornography.
N.T., 3/3/15, at 8. Used for this purpose, the remaining evidence was
clearly relevant and admissible to sustain the Commonwealth’s burden of
proof on the second set of charges. Moreover, the trial court’s parameters
for viewing the videos and photographs alleviated any concerns about the
remaining evidence entering “the realm of being overly prejudicial.” N.T.,
3/3/15, at 86; N.T., 3/4/15, 166–169, 191–199. Additionally, Appellant was
(Footnote Continued Next Page)

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A final aspect of Appellant’s first issue concerns his reliance on

Cunningham, 694 F.3d 372, for the proposition that the trial court was

required to review all of the Commonwealth’s videos and photographs before

admitting them into evidence. In Cunningham, the Court of Appeals

overturned the district judge’s decision to admit challenged evidence of

pornography based only on his reading of the written descriptions of the

video excerpts and not on his personal viewing of them. Id. at 383.

Appellant’s reliance on Cunningham is unavailing. “Absent a United

States Supreme Court pronouncement, decisions of federal courts are not

binding on state courts[.]” Commonwealth v. Walker, 139 A.3d 225,

230–231 (Pa. Super. 2016), appeal denied, 257 EAL 2016 (Pa. Oct. 13,

2016) (quoting Commonwealth v. Lambert, 765 A.2d 306, 315 n.4 (Pa.

Super. 2000) (citation omitted)). Moreover, we distinguish Cunningham on

several fronts. First, Mr. Cunningham challenged specific video excerpts and

photographs in pretrial motions. Cunningham, 694 F.3d at 377–378.

Contrarily, Appellant did not identify which specific videos or photographs he

was challenging in a pretrial motion. N.T., 3/3/15, at 25. Second, the

district court determined admissibility based solely on graphic written

descriptions of the challenged video excerpts. Cunningham, 694 F.3d at

_______________________
(Footnote Continued)

acquitted of all charges based on the remaining evidence. N.T., 3/6/15, at
110. Therefore, there exists no merit to this challenge, even if it were
properly preserved.

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380. This component is not present in the case at hand. Third, the district

court did not review any of the challenged video excerpts before admitting

them over objection. Id. Here, with Appellant’s approval, the trial court

viewed the sample evidence proffered by the Commonwealth at a pretrial

hearing. N.T., 3/3/15, at 75–78. Fourth, the district court admitted all of

the challenged video excerpts despite the probative value of some of them

being outweighed by their prejudicial effect. Cunningham, 694 F.3d at

389–390. Here, applying a balancing test and strict parameters, the trial

court admitted the sample evidence, which it found more probative than

prejudicial, and the remaining evidence, to which Appellant did not object.

N.T., 3/4/15, at 164, 166–169. Cunningham is inapposite.

In his second issue, Appellant presents a constitutional challenge to

the Commonwealth’s software. Our rules of criminal procedure provide that

the Commonwealth is not required to produce discovery that is neither

inculpatory nor exculpatory; nor is it required to produce its investigatory

methods. Pa.R.Crim.P. 573(B)(1). Additionally, issues not raised in the trial

court are waived and cannot be raised for the first time on appeal. Pa.R.A.P.

302(a).

Appellant complains that he was denied his right to confront the

evidence against him under the United States and Pennsylvania

Constitutions because the Commonwealth refused to allow an evaluation of

the software by Appellant’s forensic expert. Appellant’s Brief at 15–22. In

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response, the Commonwealth argues that Appellant has waived this issue by

failing to preserve it in the trial court. Commonwealth’s Brief at 15.

The record reveals that Appellant requested discovery of the software

at the direction of his forensic computer expert, Dr. Rebecca Mercuri.

Motion to Compel, 7/1/14, at ¶¶ 9, 10, Exhibit B. Because the

Commonwealth refused to deliver the software, claiming that it was a

proprietary investigative tool, the trial court conducted two omnibus

hearings, accepted briefs, and entered an order requiring the

Commonwealth to disclose the name and version of the software. N.T.,

7/16/14; N.T., 9/29/14; Order, 7/18/14. By the start of a third omnibus

hearing, the software discovery issue appeared to have been settled because

the Commonwealth provided the name and version of the software. N.T.,

1/12/15, at 5–6. Nonetheless, Appellant again challenged the

Commonwealth’s refusal to deliver the software and, for the first time,

raised the Sixth Amendment confrontation clause. N.T., 1/12/15, at 43.

The trial court rejected Appellant’s discovery argument, stating “[I]t’s not an

open issue[.]” Id. at 45. Appellant next raised the confrontation clause in

his Brief in Support of Post Sentence Motion. Brief in Support of Post

Sentence Motion, 9/9/15, at 7. At the post-sentence motion hearing, the

trial court addressed this issue as follows:

Next, is the Confrontation Clause. [Appellant] has
challenged –– has requested that he actually be able to inspect
and review the Commonwealth’s software from the beginning of
this case.

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I ruled on that matter several times and stated my reasons
already. Now, the defense has –– now, the defense has taken a
different tact, and has indicated that the Commonwealth’s
refusal to allow him to do so and my ruling somehow violated
[Appellant’s] Confrontation Rights.

I don’t find any legal support for that argument. I also
believe that the Commonwealth has crept [sic] that that
particular argument wasn’t raised or preserved in any earlier ––
in a prior stage in this case, and is mentioned in the brief but not
in the post-sentence motion of [Appellant].

Finally, I will point out that while [Appellant] is talking
about the Confrontation Rights, which, of course, requires a
meaningful opportunity to confront those who present evidence
against you, the record amply demonstrates that substantial
discovery was provided to [Appellant]; that the defense expert
was here for more than a day; and that she spent time with
Detective Webb[e]; that she spent time with the hardware; that
she knew about the software; that many, many documents and
lots of information about this were provided to the defense
ahead of time; that the expert had a sufficient basis and a
substantial basis on which to testify –– the defense expert that is
–– and that Detective Webb[e] was vigorously cross-examined
by counsel for [Appellant].

So, to the extent that the Confrontation Clause argument
has legs, I don’t think they have any merit.

N.T., 9/21/15, at 25–27. Finally, Appellant raised the confrontation clause

issue in his statement of errors. Pa.R.A.P. 1925(b) Statement, 11/3/15, at

¶¶ 1, 2.

Upon review of the certified record, we conclude that this issue is

waived because Appellant did not properly preserve it in the trial court. This

failure is not cured by submitting the challenge in a Rule 1925(b) statement.

Accord Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003)

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(holding that guilty plea issue was waived where appellant did not raise it in

the trial court before raising it in his Rule 1925(b) statement).6

Appellant’s third issue challenges the sufficiency of the evidence that

he possessed and disseminated child pornography. Appellant’s Brief at 22.

We employ a well-settled standard of review for sufficiency claims:

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. Colon-Plaza, 136 A.3d 521, 525–526 (Pa. Super.

2016) (quoting Commonwealth v. Robertson–Dewar, 829 A.2d 1207,

1211 (Pa. Super. 2003)).

____________________________________________

6
Even if this issue were not waived, we would affirm the trial court’s
conclusion on the basis of its post-sentence remarks and its well-reasoned
opinion to this Court. N.T., 9/21/15, at 25–27; Trial Court Opinion, 1/19/16,
at 22–25.

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A person is guilty of sexual abuse of children, dissemination of

photographs, videotapes, computer depictions, and films, if he “knowingly...

possesses for the purpose of sale, distribution, delivery, dissemination,

transfer, display or exhibition to others, any...computer depiction...depicting

a child under the age of [eighteen] years engaging in a prohibited sexual act

or in the simulation of such act....” 18 Pa.C.S. § 6312(c). Similarly, “[a]ny

person who intentionally views or knowingly possesses or controls any ...

computer depiction ... depicting a child under the age of [eighteen] years

engaging in a prohibited sexual act or in the simulation of such act commits”

sexual abuse of children, child pornography. 18 Pa.C.S. § 6312(d).

The crux of Appellant’s argument is that the Commonwealth proffered

partial downloads from his Dell laptop which were insufficient to sustain the

convictions of possession and dissemination. Appellant’s Brief at 22–27.

Notably, Appellant offers no binding, legal authority that the

Commonwealth’s evidence was insufficient to support his convictions under

18 Pa.C.S. § 6312(c), (d). Specifically, Appellant cites to the Third Circuit

Court of Appeals’ decision in United States v. Husmann, 765 F.3d 169 (3d

Cir. 2014), and the Ninth Circuit Court of Appeals’ decision in United States

v. Flyer, 633 F.3d 911 (9th Cir. 2011). Appellant’s reliance on Husmann

and Flyer are unavailing. Again, absent a pronouncement by United States

Supreme Court, decisions of federal courts are not binding on state courts.

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Walker, 139 A.3d at 230–231. Moreover, Husmann and Flyer are

distinguishable.

In Husmann, the Court of Appeals concluded that the mere act of

placing child pornography materials in a shared computer folder, available to

other users of a file sharing network, does not constitute distribution of child

pornography. The Court of Appeals based its ruling on the fact that the

government did not present evidence that any person had actually

downloaded or obtained the materials that Husmann made available in his

shared computer folder. Husmann, 765 F.3d at 176. In contrast, here the

Commonwealth presented evidence that Detective Webbe actually

downloaded and obtained materials, including five complete files, from

Appellant’s computer that were available to other users of the Ares file-

sharing network. N.T., 3/4/15, at 82–97.

In Flyer, the government recovered files from the unallocated space of

Flyer’s Gateway computer hard drive. The government conceded, however,

that it presented no evidence that Flyer knew of the presence of the files on

the unallocated space or that Flyer had the forensic software required to see

or access the files. Because there was no evidence that Flyer had accessed,

enlarged, or manipulated any of the charged images, and he made no

admission that he had viewed the charged images on or near the time

alleged in the indictment, the Court of Appeals overturned Flyer’s conviction

for possession of child pornography. Flyer, 633 F.3d at 919. In contrast,

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Detective Webbe testified that Appellant had accessed the images recovered

from the unallocated space of his computer and then deleted them;

nevertheless, the jury acquitted Appellant of the eighty-seven charges based

on those images. N.T., 3/4/15, at 100–105; N.T., 3/6/15/ at 110.

Our review of the record confirms the trial court’s finding that

Detective Webbe’s testimony, along with the video and photographic

evidence, was sufficient to prove that Appellant possessed and distributed

the child pornography through the use of his computer. Trial Court Opinion,

1/19/16, at 33–34. Thus, Appellant’s sufficiency challenge is unconvincing.

In his fourth issue, Appellant attacks the trial court’s jury instruction

on the definition of possession. We employ the following standard in

assessing jury instructions:

[W]hen evaluating the propriety of jury instructions, this Court
will look to the instructions as a whole, and not simply isolated
portions, to determine if the instructions were improper. We
further note that, it is an unquestionable maxim of law in this
Commonwealth that a trial court has broad discretion in phrasing
its instructions, and may choose its own wording so long as the
law is clearly, adequately, and accurately presented to the jury
for its consideration. Only where there is an abuse of discretion
or an inaccurate statement of the law is there reversible error.

Commonwealth v. Trippett, 932 A.2d 188, 200 (Pa. Super. 2007)

(quoting Commonwealth v. Kerrigan, 920 A.2d 190, 198 (Pa. Super.

2007) (internal citations, quotation marks, and brackets omitted)).

According to Appellant, the trial court’s definition of possession lacked

the necessary “element of intent to exercise control over an item.”

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Appellant’s Brief at 31. Moreover, Appellant challenges the trial court’s

reliance on Commonwealth v. Diodoro, 970 A.2d 1100 (Pa. 2009),

because that case “dealt with the viewing of child pornography, and

whether that alone, could constitute control.” Appellant’s Brief at 31

(emphasis in original). The Commonwealth responds that Appellant’s

complaint lacks merit because the trial court “has broad discretion in

phrasing its instructions to the jury,” and “did in fact consider and use some

of the out-of-jurisdiction language proposed by the Appellant.”

Commonwealth’s Brief at 24, n.6.

The record confirms that defense counsel proposed a jury instruction

on the definition of possession from Massachusetts which included intent-to-

exercise-control language. N.T., 3/6/15, at 8. Notably, Appellant cites no

binding authority—and we have found none—for the proposition that “intent

to exercise control” is an element of possession under 18 Pa.C.S. § 6312(d).

Rather, Appellant again cites to federal case law from other jurisdictions

which is not binding on this Court. Appellant’s Brief at 29–31; Walker, 139

A.3d at 230–231.

The trial court rejected Appellant’s foreign definition as too narrow

because it focused on the possession of a physical object rather than on the

possession and dissemination of child pornography through a computer and

the internet. N.T., 3/6/15, at 11–16, 76–78. Instead, the trial court relied

on Diodoro, in which the Pennsylvania Supreme Court:

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examined the meaning of the word “control” in the context of
possession or control over child pornography. 18 Pa.C.S.A. §
6312(d). The [Diodoro] Court found that searching for and
clicking on images and videos of child pornography constituted
control under the statute, regardless of the “location” of these
images on the internet.

Trial Court Opinion, 1/19/16, at 40 n.6 (citing Diodoro, 970 A.2d at 1107).7

The trial court supports its ruling with the following rationale:

[A]fter considering the applicable statutes, the submissions and
arguments of the parties, and the decision in Diodoro we
provided instructions on each crime that gave effect to the plain
language of the Child Pornography statutes, incorporated the
holding and rationale of and definitions discussed in Diodoro,
included the common meanings and definitions of terms used in
the statutes, and recognized that a person can commit
Possession of Child [P]ornography by possessing, controlling, or
intentionally viewing it and the crime of Disseminating Child
Pornography by knowingly selling, distributing, delivering,
disseminating, transferring, displaying or exhibiting child
pornography to others, or possessing child pornography for the
purpose of sale, distribution, delivery , dissemination, transfer,
display, or exhibition to others. (N.T., 3/6/15, pp. 85–88).

Trial Court Opinion, 1/19/16, at 40–41.

____________________________________________

7
We explained in Diodoro that the Pennsylvania Legislature knowingly
included both “possession” and “control” in the statute. See Diodoro, 970
A.2d at 1107 (“[T]he statute employs the disjunctive ‘knowingly possesses
or controls,’ 18 Pa.C.S. § 6312(d)(1) (emphasis added). It is reasonable to
conclude that the General Assembly employed the terms ‘possession’ and
‘control’ in the disjunctive purposefully and that they were meant to have
different applications.”).

Notably, the Diodoro Court expressly declined to consider “arguments
made by both [the] appellant and the Commonwealth addressing whether
such conduct [accessing and viewing child pornography over the internet]
constitutes possession of child pornography under Section 6312(d).”
Diodoro, 970 A.2d at 1105 n.6.

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Our review of the record reveals no abuse of the trial court’s discretion

or error of law in the possession instruction. The trial court spent

considerable time discussing Appellant’s proffered instruction with counsel.

N.T., 3/6/15, at 8–17, 76–78. The trial court also explained its concern

about Appellant’s definition of possession on the record: “I don’t think it’s

sufficient and I think it would be misleading in a case involving computers,

the cyber world, and all the technological matters that we heard about

throughout this trial.” Id. at 8, 9. The trial court even provided Appellant

an opportunity to edit the proposed definition by including the technological

aspects of the case. Id. at 14, 16, 76–78. Then, the trial court instructed

the jury on all of the elements of the three crimes charged. Id. at 84–90.

Additionally, although the trial court was not required to use Appellant’s

definition of possession in its jury charge, it did use some of the same

language. Id. at 86–87. Moreover, defense counsel responded affirmatively

when the trial court asked, “Counsel satisfied with the charge?” Id. at 100.8

Upon review of the entire jury charge, and not simply isolated portions, we

conclude that the trial court clearly, adequately, and accurately presented

the law to the jury. Id. at 80–100.
____________________________________________

8
Arguably, we could find this issue waived because Appellant did not object
after the trial court concluded its charge. Bruce, 916 A.2d at 670 (stating
that failure to offer a timely and specific objection results in waiver of the
claim). However, the record fairly suggests that Appellant had a continuous
objection to the trial court’s rejection of his proposed instruction. N.T.,
3/6/15, at 78.

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Appellant’s fifth assignment of error concerns the denial of his motion

for individual voir dire. “A defendant has a right to an impartial jury

pursuant to the Sixth and Fourteenth Amendments to the United States

Constitution and Article 1, § 9 of the Pennsylvania Constitution.”

Commonwealth v. Chmiel, 889 A.2d 501, 519 (Pa. 2005) (citations

omitted); Commonwealth v. Wimbush, 951 A.2d 379, 383 (Pa. Super.

2008). “The purpose of voir dire is to ensure the empaneling of a fair and

impartial jury capable of following the instructions on the law as provided by

the trial court.” Commonwealth v. Noel, 104 A.3d 1156, 1168 (Pa. 2014)

(quoting Commonwealth v. Marrero, 687 A.2d 1102, 1107 (Pa. 1996)

(citation omitted)). “The process of selecting a jury is committed to the

sound discretion of the trial judge and will be reversed only where the record

indicates an abuse of discretion, and the appellant carries the burden of

showing that the jury was not impartial.” Chmiel, 889 A.2d at 519; Noel,

104 A.3d at 1169.

Appellant complains that the trial court denied him a fair trial by

conducting voir dire collectively: “[T]he social prejudices associated with

child pornography in a public forum voir dire denies a defendant the ability

in vetting individual jurors regarding social, religious and personal prejudices

on the subject of child pornography[.]” Appellant’s Brief at 32 (emphasis

omitted). According to the Commonwealth, Appellant did not properly

preserve this issue, and therefore, it is waived. Commonwealth’s Brief at

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26. Alternatively, the Commonwealth argues, Appellant “has not nor can he

show that the jury was no[t] impartial. The Appellant was acquitted in the

companion case, clearly showing the jury was not biased against him.”

Commonwealth’s Brief at 26–27.

The trial court rejected Appellant’s argument for several reasons:

First, once again, [Appellant] was acquitted in the
companion case. Given the acquittal, it is hard to imagine how
the chosen form of jury selection prejudiced him or how
[Appellant] might believe the jury was not impartial.

Second, procedurally, [Appellant] did not properly
preserve this assertion for appellate review in that he did not
sufficiently flesh out this issue by pointing to any specific defect
in the jury selection process that was employed, any specific
harm or prejudice he suffered, any specific question or
(categories of question) counsel was unable to ask, any juror he
would have questioned further if questioning was done
individually, any juror whose “social, religious, or personal
prejudice” would have resulted in disqualification of excusal for
cause, or any point during the selection process which should
have prompted us to switch to individual voir dire. Simply,
[Appellant] does not specifically allege that the jury selected was
not fair and impartial. Rather, he merely asserts that, in child
pornography cases, individual jury selection should be utilized.
...

Third, regardless of the belief of [Appellant] or his
attorneys, individual voir dire is currently required by the
Pennsylvania Rules of Criminal Procedure only in capital cases.
In all other cases, the trial judge may select either individual voir
dire or the list challenge system (group voir dire) to select a
jury. Pa.R.Crim.P. 631(F)(1). In this proceeding, as this was
not a capital case, or a case involving massive pre-trial publicity,
we determined there was no need for individual voir dire. This
decision is discretionary per Rule 631 and, as discussed,
[Appellant] has failed to allege or demonstrate how we abused
our discretion or how he was prejudiced by our choice.

Trial Court Opinion, 1/19/16, at 38–39 (citation to record omitted).

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Upon review, we find support in the certified record for the trial court’s

ruling. N.T., 3/3/15, at 5–8, 14–15, 55–58. Moreover, we discern no abuse

of discretion by the trial court in conducting voir dire collectively. Thus, we

conclude that Appellant’s contrary assertion does not warrant relief. In

reaching this conclusion, we adopt as our own the well-reasoned analysis of

the trial court set forth above.

Appellant’s four remaining issues challenge his sentence as an abuse

of the sentencing court’s discretion. Appellant’s Brief at 36. We reiterate

that “[t]he right to appellate review of the discretionary aspects of a

sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d 127, 132

(Pa. Super. 2014). Rather, where an appellant challenges the discretionary

aspects of a sentence, the appeal should be considered a petition for

allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa.

Super. 2007). As we observed in Commonwealth v. Moury, 992 A.2d 162

(Pa. Super. 2010):

An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:

[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal,
see Pa.R.A.P. 902 and 903; (2) whether the issue
was properly preserved at sentencing or in a motion
to reconsider and modify sentence, see Pa.R.Crim.P.
[708]; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from
is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).

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Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.

Super. 2006)). With regard to the third requirement, we have explained:

[A]n appellant who challenges the discretionary aspects of a
sentence in a criminal matter shall set forth in his brief a concise
statement of the reasons relied upon for allowance of appeal
with respect to the discretionary aspects of a sentence. Pa.R.A.P.
2119(f). Such a statement must raise a substantial question,
which we have described as a plausible argument that the
sentence is contrary to a specific provision of the Sentencing
Code or to the fundamental norms underlying the sentencing
process. Should a defendant fail to comply with these
procedures, this Court is empowered to dismiss his appeal. See
Commonwealth v. Penrod, 578 A.2d 486, 490 (Pa. Super.
1990).

Commonwealth v. Bonds, 890 A.2d 414, 417 (Pa. Super. 2005) (internal

quotation marks and case citation omitted); Commonwealth v. Mouzon,

812 A.2d 617, 627 (Pa. 2002).

Herein, Appellant filed a timely notice of appeal, and he preserved

sentencing issues in a post-sentence motion. Notice of Appeal, 10/14/15, at

1; Motion, 6/24/15, at ¶ 24. However, Appellant’s Pa.R.A.P. 2119(f)

statement is woefully deficient in that it simply lists his four sentencing

issues, which differ in some instances from the issues raised in his post-

sentence motion. Appellant’s Brief at 8. Although Appellant has labeled the

section of his argument addressing his sentencing challenges in an apparent

attempt to comply, nowhere does he articulate the manner in which the

sentence violates either a specific provision of the sentencing scheme set

forth in the Sentencing Code or a particular fundamental norm underlying

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the sentencing process. Appellant’s Brief at 35. Given this deficiency, we

deny Appellant’s petition for allowance to appeal the discretionary aspects of

his sentence.9 Penrod, 578 A.2d at 490.

Finally, we address the trial court’s designation of Appellant as a Tier

III sexual offender under the Sex Offender Registration and Notification Act

(“SORNA”), 42 Pa.C.S. §§ 9799.10–9799.41. N.T., 6/16/15, at 29. In light

of the Supreme Court’s recent decision in Commonwealth v. Lutz-

Morrison, 143 A.3d 891 (Pa. 2016), this ruling presents a non-waivable

legality-of-sentence issue. According to the Lutz-Morrison Court, SORNA

implicates the recidivist philosophy, requiring an action, a conviction, and a

subsequent act to trigger lifetime registration for multiple offenses otherwise

subject to a fifteen- or twenty-five-year registration period. Lutz-Morrison,

143 A.3d at 895. Because Appellant is a first-time offender, we are

constrained to vacate the lifetime registration portion of Appellant’s sentence

and remand for re-sentencing under SORNA.

Convictions affirmed; judgment of sentence vacated in part; case

remanded for re-sentencing. Jurisdiction relinquished.

____________________________________________

9
Even if we overlooked Appellant’s defective Pa.R.A.P. 2119(f) statement,
we would dispose of his sentencing challenges by adopting the well-reasoned
analysis of the trial court. Trial Court Opinion, 1/19/16, at 42–46.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/29/2017

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