Com. v. Thoman, S.

J-A24019-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHANNON LAMAR THOMAN :
:
Appellant : No. 994 MDA 2017

Appeal from the Judgment of Sentence Entered February 3, 2016
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0003498-2014

BEFORE: OTT, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.: FILED: JANUARY 28, 2019

A jury convicted Shannon Lamar Thoman of seven counts of sexual

abuse of children - child pornography.1 He now appeals the judgment of

sentence entered on February 3, 2016. Thoman raises a Batson2 claim;

challenges the sufficiency of the evidence; and maintains that the testimony

from the assigned detective on the case was inadmissible because it was

misleading and overwhelmed the jury. We affirm on the basis of the trial court

opinion.

The trial court aptly summarized the relevant procedural history and

facts of this case. See Trial Court Opinion (“TCO”), filed December 28, 2017,

____________________________________________

1 18 Pa.C.S.A. § 6312(d).

2 Batson v. Kentucky, 476 U.S. 79 (1986).
J-A24019-18

at 5-10. Therefore, we do not restate them and instead briefly note that

photographs of nude minors were found on hard drives belonging to Thoman.

The trial court rejected all of Thoman’s claims. First, it reviewed his

Batson claim and concluded “we do not believe that trial counsel made a

record that addressed the inquiries that must be made for a Batson challenge.

Again, such a failure precludes appellate review of any Batson challenges.”

Id. at 13 (emphasis in original).

Next, it reviewed his challenges to the sufficiency of the evidence and

concluded that they were all meritless. It explained that the evidence was

sufficient to satisfy the convictions for child pornography despite Thoman’s

arguments that the Commonwealth did not prove that the depictions were for

sexual stimulation or gratification; that he knowingly possessed the

depictions; and that the minors in the photographs were under the age of 18.

The trial court opined that the photographs “depict[ed] lewd exhibition of the

genitals or nudity that was produced for sexual stimulation” and the “jurors

could reasonably conclude that the photos in question met the definition of a

[‘]prohibited sexual act[’]” within the statute. Id. at 17. It also explained that

because a “timely objection was [not] raised regarding” the issue of the age

of the minors in the photographs, Thoman waived appellate review of the

issue. Id. at 20. Regarding the argument of his knowing possession of the

photographs, the court stated that Thoman’s argument is a challenge to the

weight and not the sufficiency of the evidence. Id. at 27. However, it

nonetheless concluded that because “[its] sense of justice was not shocked,

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J-A24019-18

the jury’s verdict should remain undisturbed.” Id. at 28. Thoman also

challenged the testimony of the investigating detective, claiming that his

testimony was misleading and confused the jury. The trial court also rejected

this argument, stating “the jury was well aware as to how many photos

[Thoman] was alleged to possess,” and “because the jury only needed to

determine if [Thoman] possessed the images he was charged with

possessing,” the testimony did not mislead the jury. Id. at 30, 31.

Additionally, even if the jury was confused by the testimony, the court

concluded the photographs “recovered from the loose hard drive, Dell laptop,

and Gateway laptop w[ere] overwhelming.” Id. at 31. We agree and also note

that Thoman waived this issue by failing to develop this argument in his brief.

See Commonwealth v. Wilson, 147 A.3d 7, 15 (Pa.Super. 2016) (“Where

an appellant offers no citation to pertinent case law or other authority in

support of an argument, the claim is waived”).

When reviewing a challenge to the sufficiency of the evidence, we are

“required to view the evidence in the light most favorable to the verdict winner

giving the prosecution the benefit of all reasonable inferences to be drawn

from the evidence.” Commonwealth v. Neysmith, 192 A.3d 184, 189

(Pa.Super. 2018) (citation omitted). Our standard of review is de novo and

our scope of review is plenary. Id.

After a thorough review of the certified record, the parties’ briefs, and

the relevant law, we affirm on the basis of the well-reasoned opinion of the

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Honorable Michael E. Bortner, which we adopt and incorporate herein. See

TCO at 11-32.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 01/28/2019

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 Circulated 01/02/2019 12:08 PM

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IN THE COURT OF COMMON PLEAS OF YOIRK COUNTY, PENNSYLVANIA
· CRIMINAL DIVISirON
,.l

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COMMONWEALTH ''"'"'''

v.
SHANNON LAMAR THOMAN,
C) Defendant/Appellant
,.)
COUNSEL OF RECORD:

Thomas L. Kearney, III, Esquire Barbara Jo Entwistle, Esquire
District Attorney of York County Counsel for Defendant

OPINION IN SUPPORT OF ORDER PURSUANT TO RULE 1925(a) OF THE
RULES OF APPELLATE PROCEDURE
The Court received a Notice of Appeal, docketed on June 23, 2017, thatShannonL.

Thoman, by and through his counsel, appeals to the Superior Court of Pennsylvania this

Court's order of June 1, 2017. The Court has reviewed the record. The Court now issues

this opinion in support of our June 1, 2017 order.

I. Procedural History

The Appellant's trial by jury began on November 2, 2015 and, at the conclusion of

that trial, the jury returned a verdict of guilty on seven counts of possession of child

pornography.' Sentencing was held on February 3, 2016. On Count 2, the Appellant was

sentenced to eleven-and-a-half to twenty-three months in York CountyPrison. The Appellant

received one year of probation on each of the other six counts, numbered as Counts 3, 4, 5, 6,

1 17 Pa.C.S.A. 6312(d)
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7, and·9. Each of the probationary counts ran consecutive to one another and to the sentence

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of confinement on Count 2.

On November 21, 2016,the Appellant filed apro se Post-Conviction Relief Act
Ul
i--"'·· (hereinafter: PCRA) petition. Subsequently, the Appellant obtained the legal representation

of Barbara Jo Entwistle, Esquire, who, on January 19, 2017, filed the Appellant's Motion for
:;)
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Stay of Sexual Therapy and Counseling Conditions of Sentencing Relating to Sex Offender
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Status. A hearing was set for this motion on February 21, 2017 at which this Court suspended

the usage of polygraph testing in the Appellant's sentence to avoid his making any

inculpatory statements whilst challenging his conviction. By an order of February 14, 2017, a

PCRA hearing was set for April 5, 2017. On March 21, 2017, a Motion to Amend PCRA

Petition was filed. Permission to amend was granted on April 5, 2017. The amended P<:;RA

was filed that same day. Prior to a true PCRA hearing occurring, the Commonwealth filed

their Commonwealth's Response to PCRA Petition, which sought the granting of that portion

of the. Appellant's PCRA that requested the reinstatement of hi� appeal rights nunc pro tune.

We signed the Commonwealth's proposed order on June 1, 2017, which reinstated the

Appellant's post-sentence and appeal rights. Thereafter, on June 9, 2017, the Appellant

caused to be docketed his Post-Sentence Motions. Prior to our review of those motions, on

June23, 2017, the Appellant filed a Notice of Appeal of our June 1, 2017 order. On July 7,

2017, pursuant to the Pennsylvania Rules of Appellate Procedure, Rule 1925(b), the

Appellant was directed to file a statement of matters complained of on appeal. That same

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{':.) day, we also denied the Appellant's post-sentence motions based upon our belief that the

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filing of the notice of appeal denuded this Court of jurisdiction to decide those motions. See

Pa.R.A.P. 1701 (a). On July 17, 2017, the Appellant filed his Motion for Order Reinstating

Defendant's Post-Sentence Motions based upon the averment that counsel had inadvertently

appealed. Unfortunately, we do not believe we possess the power to enter orders in a case
(;:)
(1.)
that has been a�pealed where the Superior Court has not remanded or relinquished
.('P

jurisdiction, nor has the Appellant withdrawn his appeal. See again, Pa.RAP. 1701(a).

Thereafter, the Appellant timely complied with our Rule I 925(b) request and submitted his

Concise Statement of Matters Complained of on Appeal on July 28, 2017.

The Appellant appeals for the following reasons:

L First, the Appellant complains that, as a result of the Commonwealth exercising all of

its peremptory challenges to strike men, which resulted in the impaneling ofan all-

female jury, the Appellant was denied trial by a jury of his peers.

2. Secondly, the evidence adduced by the Commonwealth 'was insufficient to

demonstrate, as required, " ... a child under the age of 18 engaging in a prohibited

sexual act or in the simulation of such act," because none of the photographs depicted

actual or simulated sexual activity.

3. Thirdly, the Appellant argues that the evidence was insufficient to show that the

persons depicted in each ofthe photos related to the charges upon which guilt was

found were under the age of 18 as required by 18 Pa.C.S:A. § l 632(e ).

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4. Fourth, the Appellant avers that the photos undergirding each of the individual

··-..I charges did not depict sexual acts and the evidence was insufficient to show that the
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photos were possessed for purposes of sexual stimulation or gratification of the

possessor.

5. Fifth, the Appellant states that there was insufficient evidence presented to prove that
(__;,.).

co. the App_ellant "knowingly" possessed the photos in question where the evidence
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demonstrated that the photos had been deleted and no evidence was produced that the

Appellant had viewed them.

6. Sixth, the Appellant believes that the evidence was insufficient to show thatthe

Appellant "knowingly" possessed Exhibits #5, #6, #7, and #8 where those photos had

been downloaded in 2009 and 2010 before the Appellant gained any access to the

computer in question in the last quarter of 2012 and all of the photographs had been

deleted.

7. Seventh, the Appellant alleges that Detective Baker introduced misleading, irrelevant,

and confusing computer terminology that resulted in a verdict based upon insufficient

and irrelevant evidence ..

8. Eighth and finally, the Appellant submits that there was insufficient evidence to show

that the Appellant "knowingly'' possessed Exhibit #12.

We would note that it.is our belief that the Appellant did not fully develop the record on all

of these claims of error; however, any judgement about waiver will be made by the Superior

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Court. Wewill endeavor to address each matter complained of.

-...) II.

At trial, Detective John Bumstead testified that he began investigating the Appellant
·)1
based upon information received from Detective Mark Baker .. (Notes of Testimony, 11/2/151

(.()
at 73.) Based upon this information, a search warrant was garnered and served at the

Appellant's ad�ress of4 7 North Main Street, Second Floor Rear Apartment, Mount Wolf

Borough, PA. Id., at 74. The Appellant was informed that the investigators were searching

for child pornography and the Appellant was given his Miranda Warnings. Id., at 75.

Thereafter, the Appellant sated that he is addicted to pornography, which he likened to being

alcoholic, and then he declined to make any further statements. Id., at 76. The Appellant was

transported to a police station and, advised that the Miranda Warnings were still in effect,

stated thathe did not wish to speak sans counsel. Id., at 77. On cross-examination, Detective

Bumstead indicated that he had not personally examined any of the items seized from the

Appellant's residence and hadvinstead, turned over the evidence gathered to Detective.Baker,

Id., at 78.

Detective Baker took the stand and testified that he is an investigator for Northern

York County Police Department, part of the York County Cyber Crime Task Force, part of

the Internet Crimes Against Children Task Force, and a task force officerwith the F.B.L Id.,

at 81. Detective Baker is certified to perform computer forensic examinations. Id., at 82. The

detective
.
is not, however,
.
trained to identify what is or is not child pornography. Id., at $3.

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(:) Rather, he has experience with child pornography based Upon combatingit since 2008. Id.
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Detective Baker stated that he has never been qualified as an expert in identifying child

pornography. Id. Withoutobjection, Detective Baker was qualified as an expert in computer
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..�.. forensic analysis. Id., at 84 .
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The genesis of this case was Detective Baker monitoring a file-sharing application
(:.)

known as "Bifl�orrent." Id., at 85. Asked by the prosecution to explain the nature of

BitTorrent, Detective Baker testified as follows:

Basically-it basically boils down to what actually is a torrent. A
BitTorrent is a bunch of files. It can actually [be] one file or 40,000 files. They
are in one container.
It usually they are of the same thing. [sic] It's a way for people to
share data without cramping up bandwidth for single users. It used to be,
when Lwas a kid, you would actually make a connection to somebody else's
computer, download the file directly from them. If you are downloading
multiple files from that person, you �e taking away their internet connection
by taking away their bandwidth.
The way that BitTorrent is set up, the files-the torrent is actually
broken up into multiple pieces. So when I go online, and say I would like to
get this torrent, whatever it is, a movie or a group of images or whatever, my
torrent find will go out and say, who has this torrent. An"d out of the 6
computers that may have it, I' 11 pull pieces from all 6 computers. That way
we'll be able to take everybody's bandwidth all at the same.time and I'll be
able to get the complete torrent package.

Id., at 85"86. The detective then explained that a unique "information hash" identifies each

torrent and that investigators have developed a list of known child porn hashes. Id., at 86.

The software used by child pornography investigators is set up to only draw information

from one target computer, which, inevitably, results in the file-sharing software on the target

computer recognizing that it alone is supplying information and then terminating the
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a: connection. Id., at 87.
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Pertinent to this case, one image of interest was downloaded out of 1700 files

associated with a particular information hash before the connection was-severed. I&, at 88.
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Detective Baker believed that image to have depicted child pornography. Id., at92. The IP

r:..D address was identifiedas York.Haven, which is in York County. Id., at 93. A warrant was
1:i)

(0 obtained and se�ed on Comcast who identified the Appellant and his physical address as the
t .._)

subscriber associated with that IP address. Id The detective then described how he received

evidence including a loose hard drive and two other hard drives that he removed from

computers. Id., at 96. Those hard drives were each attached to a forensic write blocker, which

bridges the suspect's hard drive the detective's computer. Id. The write blocker blocks any

attempts by the detective's computer to edit the seized hard drive. Id., at 96;.97. Exact copies

were then made of the hard drives, which prevented any risk of the original hard drives being

altered, Id., at 97.

On the loose hard drive, Detective Baker found four images that he believed showed

child pornography. (N.T., 11/2/15, at 97.) Also on this drive was found an application to

view torrents. Id., at 97°'."98. The-detective then identified four images of suspected child

pornography from the loose hard drive. Id., at 98. These images had been deleted and only

existed as data that the computer was authorized to overwrite. Id., at 100. No dates could be

obtained for the images on the loose. hard drive. Id., at 100-01. On cross-examination,

Detective Baker explained that the dates of three of the four images indicated 2010 as the

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C; date of the originals and. digitalization and 2011 as the date on which the photos were taken.
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Id., at 135-36. These dates correspond to the camera used to produce the photos and the

detective testified that he would need to examine the actual camera used to reconcile any
.lJ]
discrepancies regarding dates on which the photos were created. Id., at 135. The loose hard

drive also contained a file shredding piece of software that is designed to overwrite the data

of a file such that the overwritten file cannot be recovered. Id., at 101-.02. Detective Baker
!.....)

opined that the presence of this software demonstrated that the Appellant possessed a mid-

level degree of sophistication for concealing child pornography. Id., at 102. The images from

the loose hard drive were then published to the jury. Id., at 102-03. Detective Baker opined

that the loose hard drive images depicted child pornography. Id. Following a sidebar, the jury

was instructed that it was. for them.to decide if the images showed child pornography. Id., at

105. Over the objections of defense counsel, Detective Baker testified regarding some of the

names of torrents discovered on the loose hard drive, which included terms like "preteen."

Id., at 105-07. These descriptive titles would have been available to the Appellant prior to

any downloadingby him. Id., at 108. The Windows Vista Business operating system of the

loose hard drive is registered to "Jody," the computer's name is "Nicholas 3,'' and there was

an unidentified user for the McAfee account. Id., at 116-17. One of the installations occurred

on September 20, 2008; however, it is not clear whether that installation refers to the

Windows operating system or theMcAfee account. Id., at 117.

A Dell laptop that was analyzed contained a torrent sharing application and a

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different type of shredding application that functioned like the one described previously. Id.,

'•,,l at 108-09. Three images were recovered from the Dell laptop. Id., at 109. Detective Baker

characterized these images as being child pornography and described the images before those

images were published to the jury.2 Id., at 110-.12. Some ofthe torrents found on the loose

hard drive and the Dell laptop included "LS" as a descriptor, which, from his training and

experience, Det�ctive Baker knows to be often associated with the name of a former child

pornography magazine. Id, at 114-15._The operating system on the Dell laptop was

registered to "Shannon" when it was installed on November 5, 2013, Id., at 116.

One image was recovered from the Gateway laptop, which was published to the jury.

Id., at 117-18; Additionally, a sharing program known as "Limewire" was found on the

Gateway laptop. Id., at 118-19. Detective Baker described how Limeware has a globally

unique identifier for each time it is installed that he referred to as a '�GUIB." Id., at 119. The

Gateway laptop had a GUIB. Id. When checked against the International Crimes Against

Children website, the GUIB for the Gateway laptop shov....ed it h'ad been sharing child

pornography. Id., at 120. In fact, the GUIB indicated that the Gateway laptop had travelled

all over the United States and Canada to places that are well removed from one another. Id.,

at 139-41. The Gateway's operating system was Windows XP Service Pack 3, which was not

registered. to any particular person during setup on July 25, 2009. Jd., at 121. This indicated .

2 It is not clear from the transcript that the images were circulated to the jury; however, this Court has no reason
to doubt that they were based upon the lack of any objections from either of the parties regarding the photos
being supplied, or not, to the jury.
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to Detective Baker that whoever set up the Gatewayhad declined to supply any personally

identifying information when setting up the Gateway laptop. Id.

On cross-examination, Detective Baker agreed with the defense that any type of file

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can be shared on BitTorrent. (N.T., 11/2/15, at 127.) Additionally, BitTorrent and shredder

applications have legal uses. Id., at 128. The detective admitted that he could not identify

who any of the subjects of the 8 pictures in question are, nor was he aware of their ages. Id.,

at 149-50.

When it came time for the defense to present evidence, they called Jody Nichols who

is the Appellant's sister. ld., at 14. Ms. Nichols stated that the Appellant worked for her at

Nichols' Insurance from January to September of 2013. (N.T., 11/4/15,. at 15.)3 The loose

hard drive, which was named "Nicholas 3," was bought for the insurancecompany to giveto

sales associates and was used from 2008 to September or October of201 l. Id., at 15-16.

Having asked his sister for a computerto use, Ms. Nichols gave the Appellant a computer

that had contained the loose hard drive during the last quarter of 2012-prior to the

Appellant's employment at Nichols' Insurance. Id., at 16-17. The computer that Jody Nichols

had lent to the Appellant was returned to her without the hard drive. Id., at 18.

3 We would note that the two days of court proceedings were bifurcated by a court holiday. This seems to have
resulted in the transcript of the second day beginning anew. In order to avoid confusion, we provide this
explanation and refer to the second day of the trial transcript by its date of l l/4/15.
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III. Matters Complained of on Appeal
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A. Trial of Appellant's Peers

The Appellant's first matter complained of is that, as a result of the Commonwealth
!JI
exercising all ofits peremptory challenges to strike men, which resulted in the impaneling of
•·-" . . .

(0 an all-female jury, the Appellant was denied trial by a jury of his peers. We believe this
c=.)
f....1-)

(J) complaint is likely premature.
en
In Batson v. Kentucky, the Supreme Court of the United States of America,

reaffirming and expanding upon their prior decision in Swain v. Alabama, 380 U.S. 202

(1965), held that the Equal Protection Clause of the 14th Amendment disallows prosecutors

from striking potential jurors based upon the erroneous notion that black jurors could not be

impartial in a case presented against a black defendant." 476 U.S. 79, 89 (1986). In Batson,

The Court went.on to state:

[A] defendant may establish e primafacie case of purposeful discrimination in
selection of the petit jury solely on evidence concerning the prosecutor's
exercise of peremptory challenges at the defendant's trial. To establish such a
case, the defendant first must show that he is a member of a cognizable racial
group ... and that the prosecutor has exercised peremptory challenges to
remove from the venire members of the defendant's race. Second, the ·
defendant is entitled to rely on the fact, as to which there can be no dispute,
that peremptory challenges constitute a jury selection practice that permits
."those to discriminate who are of amind to discriminate." ... Finally, the
defendant must show that these facts and any other relevant circumstances
raise an inference that the prosecutor used that practice to exclude the
veniremen from the petitjury on accountof their race. This combination of

4 Westlaw provides an extremely helpful primer on the subject of Batson challenges that has guided our
understanding of the matter and which can be found at: 1 OA West's Pa. Prac., Driving Under the Influence §
27:6 (2016 ed.)
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factors in the empaneling of the petit jury, as in the selection of the venire,
raises the necessary inference of purposeful discrimination.

Id., at 96 (internal citations omitted). The case law has developed such that defendants of any

race may assert Batson challenges to the exclusion of.a race or gender from their jury. See
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Powers v. Ohio, 499 U.S. 400 (1991) and J.E.B. v.. Alabama ex rel. T.B., 511 U.S.127

c: (I 994); respectively. See also, 'Commcnwealthv. Roney, 79 AJd 595, 618·19 (Pa. 2013)

''·,.J (citing .I.EB., supra).

The relevant circumstances a court must consider include any patterns in striking a

race of'jurors and the prosecutor's questions and comments while conducting the voir dire

process. Commonwealth v. Wilson, 649 A,2d 435, 443 (Pa, 1994). Interestingly, "[t]he

striking of a number ofindividuals belonging to some cognizable minority group, however,

is not dispositive that a violation of Batson has occurred." Commonwealth v. Rico, 711 A.2d

990, 993 (Pa. 1998) (citing Commonwealth v. Abu-Jamal, 555 A.2d 846, 850 (Pa. 1989)).

In order to lay the groundwork for a successful Batson challenge appeal that.is

premised upon a primafacie case of racial discrimination having occurred during voir dire,

defense counsel must make a record of the following:

J. the race or gender of all the venirepersons in the jury pools;

2 .. the race or gender of all venirepersons remaining after challenges for cause;

3. the race or gender of those removed by the prosecutor.and

4. the race or gender ofthe.jurors who served and the gender of jurors
acceptable by the Commonwealth who were stricken by the defense.

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Id. (citing Commonwealth v. Spence, 627 A.2d 1176, 1182-83 (Pa. 1993); Commonwealth v.
...]
Jones, 668 A.2d 49 l, 518 (Pa. 1995)). Any failure of defense counsel to make such a

complete record precludes appellate review of Batson challenges. Commonwealth v.
fl
Thompson, 106 A.3d 742, 752 (Pa. Super. Ct. 2014) (citations omitted). "After such a record

is established, the trial court is to consider the totality of the circumstances to determine

D whether challen.ges were used to exclude venirepersons on account ofrace or gender." Rico,

supra, at 993. "If the court finds in the affirmative, the prosecutor is to offer neutral reasons

for each ofits strikes." Id.; Batson, 476 U.S., at 97 (citations omitted).

Unfortunately for the Appellant, we do not believe that trial counsel made a.record

thataddressed the inquiries that must be made for a Batson challenge. Again, such a failure

precludes appellate review of any Batson challenges. This is not to say that the matter Will

forever evade review; but, rather, that it is untimely submitted on a direct appeal. For this

reason, we humbly seek affirmance as to this matter complained of on appeal.

In Comnionwealth v. Sepulveda, the Pennsylvania Supreme Court found that the

defendant could not demonstrate, in a Post-Conviction Relief Act setting, purposeful

discrimination based upon statistical evidence. 55 A.3d 1108, 1132,.33 (Pa. 2012) (citations

omitted). We would note, however, that, in Sepulveda, the Commonwealth had not exercised

all of its peremptory strikes, the Commonwealth had acceptedjurors ofboth genders, and

nothing in the transcript demonstrated gender-based bias or animus. Id

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c::, B. Sufficiency of the Evidence

A number of the Appellant's matters complained of relate to the supposed

insufficiency of evidence. 5 Therefore, we provide a brief synopsis of relevant law to avoid
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needless repetition later. In Commonwealth v. Fabian, the Superior Court succinctly laid out

their standard ofreviewfor sufficiency of the evidence challenges as follows:

1.1) The standard we apply in reviewing the sufficiency of the evidence is whether
(,,.(j
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 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 [finder] of fact while
passing upon the credibility of witnesses and the weight of the evidence
produced, is free to believe all, part or none ofthe evidence.

60 A.3d 146, 150-51 (Pa. Super. Ct. 2013)(Com,noriwealthv. .Jones, 886 A.2d 689,

704 (Pa. Super. Ct. 2005)). With the aforementioned law in mind, we turn to those matters

complained of regarding the sufficiency of evidence,

5 We believe.that the Appellant could have challenged the-sufficiency of the evidence to prove Possession of
Child Pornography in orie consolidated matter as all of the charges are identical=-save for the image in
question-and the Appellant is realistically challenging the sufficiency ofthe evidence presented to show
Possession of Child Pornography. Nonetheless; we will attempt to hew as closely as possible to the Appellant's
presentation so as to avoid missing an issue raised. ·
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�j 1. Underage Prohibited Sexual Acts or Simulation Thereof

··�! The Appellant's first and fourth matters complained of are so intertwined as to be all

but inseparable. Therefore, for conservation of judicial resources, we dispense with them
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simultaneously. In his second matter complained of on appeal, the Appellant avers that the

.D evidence adduced by the Commonwealth was insufficient to demonstrate, as required," ... a

child under the �ge of 18 engaging in a prohibited sexual act or in the simulation of such

act," because none of the photographs depicted actual or simulated sexual activity. For his

fourth matter complained of on appeal, the Appellant avers that.the photos undergirding each

of the individual charges did not depict sexual acts and the evidence was insufficient.to show

that the photos were possessed for purposes of sexual stimulation or gratification of the

possessor. For the reasons cited infra, we disagree with both contentions.

Ab initio, we describe the photos in question. ·Exhibit number 5 was described by

Detective Baker as follows:
.: . .
It's an image of two prepubescent females and one prepubescent male
standing naked, and it appears to be in a bathhouse. One of the females is
holding a tennis ball. It looks like it's overseas, if! would have to guess.

(Notes of Testimony, 11/2/15, at 99.}Exhibit nurnberewas described as follows: "This is an

image of two prepubescent females laying [sic] on a beach, both are completely naked and

laying on their stomachs in the sand as the water comes over them." Id. Exhibit number 7

was described as follows: "This is two prepubescent females, it looks like they are standing

in a shower, one might be a male, I can't tell by the way it's blurred out" Id., at 99-100.

15
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2) Exhibit number 8 was described as follows: "This is of another two prepubescent females,

they are both kneeling on, it looks like a couch, facing a wall, and they are both completely

r.:.:, naked[.]"Jd., at 100. Exhibit number 9 was described as follows: "It appears to be a

J1
prepubescent female kneeling on a bed. She's completely naked facing way from the

camera." Id., at 110. Exhibit number 10 is described as follows: "This is ofa prepubescent

female on a professional set, she's completely naked, and she's holding a flower above her

head." Id., at 110--ll. And, Exhibit number 12 was described as follows: "This is an image of

a prepubescent female laying {sic] naked, it appears to be on a desk, I believe there is an

adult male that is having intercourse with this female." Id., at 118.

All ofthe charges of which the Appellant was convicted were for Possession of Child

Pornography. Possession of Child Pornography is defined in relevant part of 18 Pa.C.S.A. §

6312(d) as follows:

Any person who intentionally views or knowingly possesses qr controls any
book, magazine, pamphlet, slide, photograph, film, videotape, computer
depiction or other material depicting a child under the age of 18 years
engagingin a prohibited sexual act orin the simulation of such act commits an
offense.

Based upon his first complaint, the Appellant does not believe the photos depict actual or

simulated sexual activity. And, the definition for "prohibited sexual act" forms the basis of

the Appellant's fourth matter complained of. One cannot be easily addressed without

touching upon the other. So, we look to the definition of'vprohibtted sexual act," as defined

at 18 Pa.C.S.A § 6312(g) and find that _it includes the following:

16

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C) Sexual intercourse as defined in section 3101 (relating to definitions),
�-.,..- masturbation, sadism, mascichism, bestiality, fellatio, cunnilingus, lewd
�·-)
exhibition of the genitals or nudity ifsuch nudity is depictedfor the purpose of
sexual stimulation or gratification of any person who might view such
depiction.
If]
.....,. (emphasis added). All of the photos, as described above, depict lewd exhibition of the

genitals or nudity that was produced for sexual stimulation. To quote Mr. Justice Douglas in
(?.)

his dissenting opinion in Miller v. California, regarding what qualifies as hardcore

pornography, "'I could never succeed in (defining it) intelligibly,' but 'I know it when I see

it.'" 413 U.S. 15, 39 {quoting Mr. Justice Stewart's concurring opinion in Jacobellis v. State

of Ohio, 378 U.S. 184, 197 (1964)). We believe the jurors could reasonably conclude that the

photos in question met the definition of a prohibited sexual act.

Delving further into the operative definition, in Commonwealth v. Savich, the

Superior Court found thatl 8 Pa.C.S.A. § 6312 is not void for vagueness or arbitrary as

applied to the videotaping of children. 716 A.2d 1251, 1255-57 (Pa, Super. Ct. 1998)

(citations omitted). Though another section of 18 Pa.C.S.A. § 6312 is at issue in Savich, it

relies upon the same definitions as § 6312(d). And, "[tjheterm 'for purposes of sexual

stimulation or gratification of the viewer' permits the fact-finder to distinguish between

depictions such as those in the present case from nude depictions taken for legitimate

scientific, medical or educational activities, which are specifically exempt under§ 6312(f)."

Id., at 1256 (citing Washingtonv. Bohannon, 814 P.2d 694 (1991)). Most instructive for this

case is Commonwealth v. Davidson. 938 A.2d 198 (Pa. 2007). Davidson, likeSavich

17
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f .•__)

addresses issues of potential vagueness in the definition of"prohibited sexual act" and rejects

>..J
them. Id., at 213. The Appellant, though not specifically raisingthis issue, is wallowing in it.

Put simply, the Appellant's first and fourth complaints suggest that there is simply no way of
Vl
1-� ascertaining whether the pictures were "depicted for the purpose of sexual stimulation or

gratification." 18 Pa.C.S.A. § 6312(g). In Davidson, The Court, in discussing the related§
,:2)

63 l2(a)6, states .the following:

The "nudity" qualifier does not create a subjective standard requiring people
to guess atits meaning. The content, focus and setting ofthe images create an
objective standard which allows a personof common intelligence to know
what images are prohibited under the statute. ·

Davidson, 'supra, at 213 (emphasis added), The Davidson Court went on to state:

The trial court found that "[ a]t least [ ] 28 of the thousands of pornographic
images stored within [a]ppellant['s] [] computer depicted children engaged in
vaginal intercourse, analintercourse, oral sex, performing sex acts, or in
various stages ofundress or in sexually and [sic] in sexually provocative
poses. This fact clearly satisfies the 'prohibited sexual act' definition
contained in [Section 6312(a)J ." Utilizing the statutory definition of
"prohibited sexual act," the court properly focuses on th� content ofthe
images in making its determination.

Id., at 213-14 (citation omitted) ( emphasis added). Moreover, "common sense and human

experience dictate that an 'individual of ordinary intelligence, not a mind reader or a genius,

can identify whether a photograph of a nude child depicts 'nudity' for the purpose of sexual

stimulation or gratification." Id., at 214. The fact-finding.jury; armed with their common

sense, was 'eminently able to decide if the photos in question depicted nudity for the purpose

6 The definition cited at 18 Pa;C.S.A. § 6312{a) was renumbered as 18 Pa.C.S.A. § 63 l2(g) in 2009.
18

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of sexual stimulation or gratification of any person who tnight view them. And, our

··,J estimation of the photos comports with how the jury must have viewed the photos

considering their finding of guilt. We believe that the images challenged by the Appellant

were possessed for purposes of sexual stimulation or gratification of the Appellant. We

therefore dutifully request affirmance as to this matter complained of on appeal.
..f::·,
(:) �.Age ofSubjects in Pictures

For his third matter complained of, the Appellant argues that the evidence was

insufficient to show that the persons depicted in each of the photos related to the charges

upon which guilt was found were under the age of 18 as required by 18 Pa.C.S.A. § 1632(e).

For the following reasons, we disagree.

18 Pa.C.S.A. § 6312(d) states that, for a person to be guilty of Possession of Child

Pornography, the subject must be, "a child under theage of 18 years." In Commonwealth v.

Koehler, the Superior Court states that, '"the proof necessary to satisfy the element of age in ,·

a dissemination or possession of child pornography case is not limited to expert. opinion

testimony.'" 914 A.2d 427, 438 (Pa. Super. Ct. 2006) (quoting Commonwealth v, Robertson-

Dewar, 829'A.2d 1207, 1212 (Pa. Super. Ct. 2003)). The Koehler court goes on to state that,

"[s]ection 6312 does not mandate experttestimony on age, as it permits a case-by-case

process whereby the trier of fact may be able to decide the elementofage based on the

outward physical appearance of an alleged minor.'" Id. (quoting Robertson-Dewar, supra, at

1213). "However, where the alleged minor is post-puberty but appears quite young, expert

19

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testimony may well be necessary to assist the trier of fact as to age." Id. Like the defendant in

·• ••J
Koehler, it does not appear that a timely objection was raised regarding this issue, which will

likely prevent appellate review; Id. (citing Pa.R.A.P. 302). We recognize that appeliate
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counsel was not trial counsel and that this issue may recur as a collateral matter challenging

.D trial counsel's effectiveness; however, we will nonetheless address the issue as we do not
:::,
f,:;..
believe that the�e would have been grounds to object vis-a-vis the age of the subjects of.the
.n
photos,

From our review of the photos, all of the subjects appear to be prepubescent. Per

Koehler, supra, it was for the jury to determine, sans expert testimony, whether the subjects

of the photos in question were under.the age of 18. This Court has absolutely ho question as·

to whether or not the subjects of the photos are prepubescent. To this Court, they very clearly

are. We leave any conclusion to the contrary to be made by our judicial betters. For the

foregoing reasons; we pray for affirmance as to this 'matter complained of on appeal.

3. Knowing Possession

The Appellant's fifth, sixth, and eighth matters complained of ate so interrelated as to

be best addressed together. All three of these matters complained of relate to whether or not

the Appellant knowingly possessed the photos at issue in this case. In his fifth matter

complained of, the Appellant states thatthere was insufficient evidence presented to prove

that the Appellant "knowingly" possessed the photos in question where the evidence

demonstrated that the photos had been deleted and no evidence was produced that the

20
.._)
Appellant had viewed them. For his sixth matter complained of, the Appellantbelieves that