J-A26040-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
TODD DONALD ATKINSON :
: No. 1763 MDA 2016
Appellant
Appeal from the Judgment of Sentence September 27, 2016
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0000336-2015
BEFORE: BOWES, J., OLSON, J., and RANSOM, J.
MEMORANDUM BY RANSOM, J.: FILED JANUARY 17, 2018
Appellant, Donald Todd Atkinson, appeals from the judgment of
sentence of twenty-five to fifty years of incarceration imposed following his
conviction of six counts of child pornography and one count of criminal use of
a communication facility.1 We affirm.
The following statement of facts and procedural history is garnered from
the trial court opinion, which is supported by the record.
[In September 2014], Corporal Gerhard Goodyear of the
Pennsylvania State Police was conducting an investigation of file
sharing networks looking for files containing markers for child
pornography. This investigation led him to a computer with an IP
address identifying Windstream Communications as the internet
provider. In turn, the Windstream account associated with that
IP address identified the subscriber as Quiche Amour, LLC, with a
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1 Respectively, see 18 Pa.C.S. §§ 6312(d), and 7512(a).
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billing address of 180 Heatherwood Drive, Ephrata, Pennsylvania,
which was the home address of [Appellant] and his wife.
[In November 2014], a search warrant was granted
authorizing the seizure and search of all electronic evidence
located at the specified address. This warrant was executed [] by
Trooper John Sours [(“Trooper Sours”)] and other officers of the
Pennsylvania State Police. During the execution of the search
warrant, Trooper Sours spoke with [Appellant] in the kitchen of
the residence and asked if he had been looking at child
pornography. [Appellee] replied that he had viewed child
pornography on his home computer. Then, after a long pause,
[Appellant] added that had been years ago. It was determined
during the search that the residence did not have an internet
connection and that the computer for which Windstream provided
internet access was located at a business, operated by
[Appellant’s] wife and at which [Appellant] worked, located at an
address in Akron, Pennsylvania. Officers went to that address with
[Appellant’s] wife, who consented to a search of that location, and
seized a computer and a thumb drive, both of which were
subsequently determined to contain images of child pornography.
No evidence of child pornography was found in [Appellant’s] home
or on any electronic device seized from the home.
Trial Court Opinion, 2/21/2017, at 1-4.
In February 2015, Appellant was charged with six counts of child
pornography and one count of criminal use of a communication facility. In
June 2015, Appellant filed an omnibus pretrial motion arguing that the search
warrant for Appellant’s residence lacked sufficient probable cause, and the
statements made by Appellant while in the presence of police were in violation
of his Fifth Amendment rights. Appellant simultaneously filed a motion in
limine to exclude his statement regarding past viewing of child pornography
in his home. In his motion in limine, Appellant argued that the statement was
irrelevant, that the statement should be excluded as unfairly prejudicial
pursuant to Pa.R.E. 403, and that the statement should be excluded pursuant
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to Pa.R.E. 404(b) as impermissible evidence of a prior bad act. Following a
hearing, the Honorable David L. Ashworth denied Appellant’s motions in
November 2015.
On the first day of trial in April 2016, Appellant filed a motion in limine
renewing his motion to exclude his statement. The Honorable James P. Cullen
denied the motion, and trial commenced. Appellant was convicted on all
counts. In September 2016, Appellant was sentenced to twenty-five to fifty
years of incarceration on each count of child pornography plus five years of
probation for the criminal use of a communication facility.2 All sentences were
to be served concurrently.
Appellant timely filed a notice of appeal and a court-ordered Pa.R.A.P.
1925(b) statement.3 The trial court filed a responsive opinion.
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2 In October 2010, Appellant pled guilty to two counts of indecent assault, and
one count each of criminal solicitation, endangering the welfare of children,
corrupting the morals of minors, and indecent exposure. CP-36-CR-0001794-
2009. See 18 Pa.C.S. §§ 3126(a)(7), 902(a), 4304(a), and 3127(a),
respectively. Due to Appellant’s prior sexual offense convictions, he was
subject to mandatory minimum and maximum sentence terms for his instant
sexual offenses. 42 Pa.C.S. § 9718.2(a)(1), (b) (outlining the mandatory
minimum and maximum sentences for sexual offenders).
3 In October 2016, Appellant petitioned the court for an enlargement of time
to file the 1925(b) statement. This motion was granted by the trial court,
which “granted counsel twenty days from receipt of the transcript to file his
statement of errors complained of on appeal.” Trial Court Opinion, 2/21/2017,
at 3 n.10. Counsel received the transcript on January 12, 2017, and timely
filed the court-ordered statement on February 1, 2017, twenty days from
receipt. Id.
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Appellant presents a single question for our review, wherein he renews
the challenges first raised in his motion in limine. See Motion in Limine to
Exclude Statement from Defendant that he had Viewed Child Pornography in
the Past, 6/25/2015. Essentially, Appellant asserts that his statement
regarding his past viewing of child pornography in his home was irrelevant,
that it should have been excluded as unfairly prejudicial pursuant to Pa.R.E.
403, and that the statement should have been excluded pursuant to Pa.R.E.
404(b) as impermissible evidence of a prior bad act. Appellant’s Brief at 5,
10-11, and 13-19. We note that Appellant has preserved the issue of the
admission of his statement by litigating the pre-trial motion in limine. See
Pa.R.E., 103(a)(1)(A); Pa.R.E. 103(b).
“The admissibility of evidence is within the sound discretion of the trial
court.” Commonwealth v. Estepp, 17 A.3d 939, 945 (Pa. Super. 2011).
We examine a trial court’s decision concerning the admissibility of evidence
for an abuse of discretion. Commonwealth v. Dengler, 890 A.2d 372, 379
(Pa. 2005). An abuse of discretion is not merely an error of judgment, but it
is rather the overriding or 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 of record. Commonwealth v.
Carroll, 936 A.2d 1148, 1152–53 (Pa. Super. 2007), appeal denied, 947 A.2d
735 (2008).
Relevant evidence is that which has “any tendency to make a fact more
or less probable than it would be without the evidence [,] and the fact is of
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consequence in determining the action.” Pa.R.E. 401(a), (b). Relevant
evidence may be excluded “if its probative value is outweighed by a danger of
… unfair prejudice, confusing the issues, [or] misleading the jury[.”] Pa.R.E.
403. “‘Unfair prejudice’ means a tendency to suggest decision on an improper
basis or to divert the jury's attention away from its duty of weighing the
evidence impartially.” Id. cmt. However, as our Supreme Court has
observed:
The [trial] court is not ... required to sanitize the trial to eliminate
all unpleasant facts from the jury's consideration where those
facts are relevant to the issues at hand and form part of the
history and natural development of the events and offenses for
which the defendant is charged.
Commonwealth v. Paddy, 800 A.2d 294, 308 (Pa. 2002) (citing
Commonwealth v. Lark, 543 A.2d 491, 501 (Pa. 1988)). “Evidence of a
prior crime may also be admitted to show a defendant's actions were not the
result of a mistake or accident, ‘where the manner and circumstances of two
crimes are remarkably similar.’” Commonwealth v. Tyson, 119 A.3d 353,
359 (Pa. Super. 2015), appeal denied, 128 A.3d 220 (2015) (citing
Commonwealth v. Kinard, 95 A.3d 279, 294–95 (Pa. Super. 2014)); see
also Pa.R.E. 404(b)(2).
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In the instant case, we agree with the sound reasoning of the trial
court,4 which concluded that Appellant’s statement was both relevant and
admissible to prove absence of mistake or accident:
[Appellant] made this statement to Trooper Sours after the
search warrant had been explained to him and it would, therefore,
be relevant to his knowledge and absence of mistake or accident.
Child pornography had recently been viewed late at night on a
computer, the billing address for which was [Appellant]'s home
address. That computer was located at [Appellant]'s wife's place
of business where [Appellant] worked. The child pornography was
viewed at a time when [Appellant] would have had access to the
computer but others would not since the business would have
been closed at the time. [Appellant]'s statement that he had
viewed child pornography in the past would be indicative of intent
and absence of mistake in that it supports the inference that the
presence of child pornography on the computer at [Appellant]'s
wife's place of business was not the result of accidental exposure.
Trial Court Opinion, 2/21/2017, at 8.
The trial court was not required to eliminate all unpleasant facts from
the jury’s consideration, and Appellant’s statement to police that he had
viewed child pornography on his home computer years prior was admissible
as an exception to Pa.R.E. 404(b). Paddy, 800 A.2d at 308. Moreover, the
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4 As the Honorable David L. Ashworth first denied Appellant’s motion in limine
to exclude Appellant’s statement in November 2015, when Appellant renewed
his motion in limine in April 2016, the Honorable James P. Cullen, sitting as
the trial judge, the coordinate jurisdiction rule precluded Judge Cullen from
altering the ruling. Riccio v. Am. Republic Ins. Co., 705 A.2d 422, 425 (Pa.
1997) (recognizing that “a later motion should not be entertained or granted
when a motion of the same kind has previously been denied, unless
intervening changes in the facts or the law clearly warrant a new look at the
question”) (citing Goldey v. Trustees of the Univ. of Pennsylvania, 675
A.2d 264, 267 (Pa. 1996).
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temporal relationship between the instant offenses and the prior bad acts
referenced in Appellant’s statement could not diminish the statement’s
probative value in the instant case where, (1) the statement did not specify
how many years ago the conduct occurred, and (2) the utility of the statement
was to establish Appellant’s knowledge. Commonwealth v. Drumheller,
808 A.2d 893, 905 (2002) (holding that “[a]lthough evidence of (prior
occurrences) which is too remote is not properly admissible ... it is generally
true that remoteness of the prior instances … affects the weight of that
evidence and not its admissibility”).
Here, the probative value of the statement outweighed the potential for
unfair prejudice. Additionally, the trial court proactively took steps to mitigate
against any potential prejudice of Appellant by specifically cautioning the jury
not to become inflamed by the nature of the materials. N.T. 4/6/2016, at
845-47. The trial court further explained that Appellant was not charged with
viewing child pornography in his home in connection with the statement. Id.
Accordingly, we discern no abuse of discretion by the trial court in
admitting Appellant’s statement of prior bad acts.
Judgment of sentence affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/17/2018
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