J-S45035-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIC ROLAND SWENSON :
:
Appellant : No. 941 EDA 2022
Appeal from the Judgment of Sentence Entered March 15, 2022
In the Court of Common Pleas of Montgomery County
Criminal Division at CP-46-CR-0002970-2019
BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 22, 2023
Eric Roland Swenson (Appellant) appeals from the judgment of sentence
imposed after the trial court convicted him of sexual abuse of children
(photographing, videotaping, depicting on computer or filming sexual acts),
sexual abuse of children (child pornography), and criminal use of
communication facility.1 We affirm.
The trial court explained:
On May 27, 2019, Detective Greco of the Lansdale Borough
(Montgomery County) Police Department was assigned to
investigate a report taken from Mater Dei Catholic School
involving [Appellant]. N.T., 11/29/2021, p. 30. The report
involved the assertion that [Appellant] was taking pictures of
cheer practice when his [6 year old] daughter was not on the mat.
Id. at p. 32. Detective Greco went to [Appellant’s] home and
spoke of the concern. [Appellant] stated that he had no
“nefarious” intent but, rather, had “artistic pictures” on his phone.
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1 See 18 Pa.C.S.A. §§ 6312(b), (d), and 7512.
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Id. at p. 34. Following some discussion, [Appellant] consented to
Detective Greco conducting a search of the phone. Id. at p. 38-
39. That evening, [Appellant] emailed Detective Greco, which
email included the following:
“When you asked the question if I had any improper photos
of my daughter on my phone, honestly, that hit me in the gut
and mentally grossed me out. … [t]he artistic nudes I have
on the phone got me thinking if I would allow my daughter
to do those poses and after getting sick to my stomach and
said to myself, hell no. A few photos where you can see their
vagina, they are not showing the inside. Thus, I thought they
were artistic pics. Please delete any and all nudes you deem
necessary. The only reason I saved the photos is because I
enjoy beauty. … As to my daughter’s Pep squad, that is over
for the year. From now on, I promise to take only photos of
[my daughter].”
Id. at 44-45.
Detective Greco responded to the email requesting that
[Appellant] come to the station. Meanwhile Detective Greco
obtained a warrant for the Defendant's arrest for the possession
of the pornographic images of children on the phone. The next
day, March 28, 2019, [Appellant] came to the station and was
taken into custody. Id. at p. 47.
On that same day, March 28, 2019, Detective Greco
obtained a search warrant to search the contents of [Appellant’s]
phone and his residence and ultimately seized two (2) desktop
computers and multiple hard drives, compact disks labeled with
female names, USB drives and flash drives that would be used on
a camera. Id. at p. 48-52.
After the search, still on March 28, 2019, Detective Greco
spoke again with [Appellant]. After waiving his [rights pursuant to
Miranda v. Arizona, 384 U.S. 436 (1966)], [Appellant] provided
a statement admitting that he possessed and watched “child porn
video on the computer” and that his collection included “some
video, some pictures”. [Appellant] advised that there were child
pornographic images stored on his computer in a folder titled
“mass effect2”. Id. at 56-61.
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Trial Court Opinion, 6/8/22, at 1-2.
The trial court further recounted:
The computer devices were professionally downloaded.
Counsel [for Appellant] stipulated that [Appellant’s] cell phone
“contained over one hundred images and/or videos of
prepubescent children engaged in sexual acts or in the simulation
of such acts.” Detective Greco testified that the images included
“prepubescent females, various states of nudity, posing” and
engaged in “sexual acts to include vaginal intercourse, anal
intercourse.” [N.T., 11/29/21,] at p. 69-70.
Detective Greco testified that he determined eleven (11) of
the pornographic images on [Appellant’s] phone to be of his
daughter in various stages of undress and nudity. Two of the
photographs, taken on February 9, 2019, involved [Appellant’s]
daughter posing for the camera. In the first photograph,
[Appellant’s] daughter is topless, holding a pajama or shirt top
covering her vaginal area; in the second she is covering her bare
breasts with her arms seemingly pushing up with her arms to
accentuate her breasts. Also located on the phone were
“modifications of the original” - or “cropped” versions - of the
same photographs in which [Appellant’s] daughter’s head and face
are cropped off. The modified images are essentially a zoomed-
in image of the child’s breasts. Id. at p. 72-81.
[Appellant’s] daughter was six years old when these
photographs were taken. Id. at p. 95. These photos were the
bases for Counts One and Two [sexual abuse – production], 18
Pa.C.S.A §6312(b)].
Id. at 3.
Detective Greco discovered “tens of thousands of images and videos of
child pornography” on Appellant’s desktop computers. N.T., 11/29/21, at 83.
The trial court, in camera, reviewed the evidence seized from Appellant’s
electronic devices. The trial court stated:
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The photographs included a large number of topless,
prepubescent girls, many posing in a seductive way and positioned
like the topless photograph of [Appellant’s] daughter. Many other
photographs were of prepubescent topless girls standing before
the camera. Many of the photographs included prepubescent girls
engaging in hard core sexual acts, including oral, vaginal and anal
sex involving adult penises (with the male’s head cropped out)
and fake penises. The [trial c]ourt only observed a very small
percentage of the thousands of images and videos of child
pornography.
[Appellant] had taken photographs (which were on his
phone) of his daughter -- and another similarly-aged girl --
“licking’’ or “sucking on a lollipop”. [N.T., 11/29/21,] at p. 87-90,
106-107. In his computer collection, he had a number of other
photographs of young girls also licking or sucking a lollipop. Some
of the photographs are modified and zoomed in on the child’s
mouth as she is performing this act. Of note, the pictures of the
girls on his computer with lollipops were in the same collection as
photographs of young girls with adult penises entering their
mouths.
All the girls in [Appellant’s] child porn collection “appeared
to be ... as young as four going on twelve.” Id. at p. 95.
[Appellant] also had photographs of himself posing with a
doll (a replica of a young girl) dressed in what appears to be his
daughter’s “Mater Dei Catholic School uniform top and uniform
bottom.” Id. at p. 101. There were “a lot” of photographs of
[Appellant] simulating sexual acts with the doll. One such
photograph was [Appellant] with “full frontal nudity ... posing with
the doll and smiling.” Id. at p. 102-103. The photographs confirm
that at some point, [Appellant] replaced the mouth of the doll
“from just a cotton mouth to what appears to be a plastic mouth,
like a plastic opening.” Id. at p. 103.
Yet another photograph was [Appellant] with the “doll bent
over” on a bed and [Appellant] “is behind the doll and is pulling
the doll’s hair and it looks like he is simulating a sex act.” Id. at
p. 104. Indeed, the photograph showed [Appellant] pushing down
on the doll’s neck and simulating - or literally - penetrating the
doll with his penis. The bed on which the simulated sex act was
taking place appeared to be a school-age girl’s bed, with pink paint
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or wallpaper on the walls and pink, flowered bedding. A
rectangular piece of art was on the wall, with pink juvenile
lettering, which spelled out [Appellant’s] daughter’s first name.
Notably, [Appellant] had multiple photographs of his
daughter in the same (or virtually identical) Mater Dei Catholic
School uniform as that of the doll. Id. at p. 105.
[Appellant] was also in possession of still photographs -
“cropped from a video” - of other girls from the school including a
student with a Mater Dei Catholic School uniform. The still
photographs included “edited down” -- and zoomed-in -- versions
which remove adults and other people from the photograph so
that it focuses only on the young girl. Id. at p. 116.
Id. at 3-5.
On July 19, 2021, the Commonwealth filed a motion to admit prior bad
acts evidence pursuant to Pa.R.E. 404(b).2 The trial court explained:
Specifically, the Commonwealth sought to admit evidence of
certain uncharged conduct of [Appellant] including (i) filming and
photographing girls other than his daughter at his daughter’s
school, (ii) producing photographs of himself, totally or partially
naked, along with a doll dressed in the uniform of his daughter (in
one case simulating having sexual intercourse with the doll) and
(iii) possessing photographs and videos of young girls in
potentially sexually suggestive poses or partial nudity each of
which, by itself, did not constitute child pornography.
Prior to the beginning of trial on November 29, 2021, the
[c]ourt … heard argument on the Commonwealth’s 404(b) motion,
which this [c]ourt granted.
Id. at 5-6.
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2Appellant filed a motion to dismiss for violation of Pa.R.Crim.P. 600 and delay
of his speedy trial rights, which the trial court denied.
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The court held a one-day bench trial and thereafter convicted Appellant
of the above crimes. On March 15, 2022, the court sentenced Appellant to an
aggregate 5 - 10 years in prison, followed by 7 years of probation.3 Appellant
timely appealed. Appellant and the trial court have complied with Pa.R.A.P.
1925.
Appellant presents three issues for review:
1. Whether the trial court erred in granting the Commonwealth’s
prior bad acts motion where the evidence that was admitted did
not fall under any of the Pa.R.E. 404(b)(2) exceptions and only
showed that Appellant had the propensity to act in accordance
with his attraction to young girls?
2. Whether there was sufficient evidence presented at trial to
support Appellant’s convictions for [sexual abuse of children –
production,] where it was not proven beyond a reasonable doubt
that the [sic] photographed his daughter engaged in a prohibited
sexual act?
3. Whether the sentence imposed for Appellant’s convictions for
[sexual abuse of children – production] was excessive where the
trial court was only concerned with the protection of the public
and considered an impermissible factor?
Appellant’s Brief at 7.
At the outset, we observe that
reviewing courts are not fact-finding bodies. O’Rourke v.
Commonwealth, 566 Pa. 161, 778 A.2d 1194, 1199
(2001). Appellate courts are limited to determining “whether
there is evidence in the record to justify the trial court’s
findings.” Id. at 1199 n.6. “If so, this Court is bound by
them.” Id. However, while “we accord deference to a trial court
with regard to factual findings, our review of legal conclusions is
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3 Appellant was found not to be a sexually violent predator.
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de novo.” Id. at n.7 (citation omitted). Indeed, it is a long-
standing appellate principle that, “[w]ith respect to [] inferences
and deductions from facts and [] conclusions of law, … appellate
courts have the power to draw their own inferences and make
their own deductions and conclusions.” In re Pruner’s Est., 400
Pa. 629, 162 A.2d 626, 631 (Pa. 1960) (citations omitted).
Commonwealth v. Cosby, 252 A.3d 1092, 1129 (Pa. 2021).
In his first issue, Appellant claims the trial court improperly granted the
Commonwealth’s motion to admit evidence of his prior bad acts pursuant to
Pa.R.Crim.P. 404(b)(2).
We review the trial court’s decision to admit evidence for an abuse of
discretion. Commonwealth v. Hairston, 84 A.3d 657, 664 (Pa. 2014). “An
abuse of discretion may not be found merely because an appellate court might
have reached a different conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support so as to be clearly erroneous.” Id. at 664-65 (citations omitted).
Pertinently, Rule 404(b) states:
(1) Prohibited Uses. Evidence of a crime, wrong or other act is
not admissible to prove a person’s character in order to show that
on a particular occasion the person acted in accordance with the
character.
(2) Permitted Uses. This evidence may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident. In a criminal case this evidence is admissible
only if the probative value of the evidence outweighs its potential
for unfair prejudice.
Pa.R.E. 404(b)(1)-(2).
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We recently expressed that
[g]enerally, evidence of prior bad acts or unrelated criminal
activity is inadmissible to show that a defendant acted in
conformity with those past acts or to show criminal
propensity. Pa.R.E. 404(b)(1). However, evidence of prior
bad acts may be admissible when offered to prove some
other relevant fact, such as motive, opportunity, intent,
preparation, plan, knowledge, identity, and absence of
mistake or accident. Pa.R.E. 404(b)(2). In determining
whether evidence of other prior bad acts is admissible, the
trial court is obliged to balance the probative value of such
evidence against its prejudicial impact.
Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d 483, 497
(2009).
To establish one of the exceptions set forth in
Rule 404(b)(2), there must be “a close factual nexus sufficient to
demonstrate the connective relevance of the prior bad acts to the
crime in question[.]” Commonwealth v. Sami, 243 A.3d 991,
999 (Pa. Super. 2020) (citation and emphasis omitted).
Additionally, the term “unfair prejudice” in Rule 404(b)(2) “means
a tendency to suggest a decision on an improper basis or to divert
the jury’s attention away from its duty of weighing the evidence
impartially.” Commonwealth v. Dillon, 592 Pa. 351, 925 A.2d
131, 141 (2007). “[W]hen weighing the potential for prejudice, a
trial court may consider how a cautionary jury instruction might
ameliorate the prejudicial effect of the proffered evidence.” Id.
Commonwealth v. Gilliam, 249 A.3d 257, 271–72 (Pa. Super.
2021), reargument denied (May 19, 2021), appeal denied, 267 A.3d 1213
(Pa. 2021).
Appellant argues:
The only issue at trial here was whether the one photograph, and
a modified version of it, that [Appellant] took of his six[-]year-old
daughter depicted her “in a prohibited sexual act,” as is prohibited
by section 6312(b)(2) of the Crimes Code. Given the photograph
at issue, none of the Pa.R.E. 404(b)(2) exceptions apply here and
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the trial court abused its discretion by admitting evidence that
served no other purpose than to show that [Appellant] was an
“unsavory character” who had a propensity for taking photographs
of children he found attractive.
Appellant’s Brief at 32-33. Appellant asserts the Commonwealth “sought to
introduce evidence of [him] filming minors consistent with the age of his
daughter and under the age of 13,” and specifically referenced photos
Appellant took of his “niece licking a lollipop, eating candy, and numerous
images are cropped which indicate an unnatural focus on the child’s mouth.”
Id. at 31-32 (citing N.T., 11/29/21, at 9). Appellant argues his attraction to
children was not at issue, and claims “[t]here … is no logical connection
between this evidence and the photo at issue. Id. at 33, 38.
Appellant further claims the evidence was inadmissible under the
common scheme, plan, or design exception:
In no way can it be said that it is a signature of [Appellant] to
photograph young girls, even if that includes modifying the
photographs, or performing sex acts on a doll….
Id. at 35. Appellant maintains the evidence was not admissible to establish
his motive or intent:
There is no logical connection that can be established showing that
[Appellant] was motivated to take a photograph of his daughter
because of other photographs that he took of other children, which
bear no resemblance to the photo of his daughter. Likewise, the
photograph of [Appellant’s] daughter did not grow out of nor was
it caused by him simulating sex with a doll. … The evidence was
merely an attempt to smear [Appellant’s] character by showing
that his attraction to children in general motivated him to take
photo [sic] of his daughter that was sexually gratifying to him….
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Id. at 36-37. Finally, Appellant argues the evidence was “mere propensity
evidence that should not have been admitted.” Id. at 37.
It bears repeating:
Admission of evidence is within the sound discretion of the trial
court and will be reversed only upon a showing that the trial court
clearly abused its discretion. 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.
Judicial discretion requires action in conformity with law, upon
facts and circumstances judicially before the court, after hearing
and due consideration. An abuse of discretion is not merely an
error of judgment, but if in reaching a conclusion the law is
overridden or misapplied or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill will,
as shown by the evidence or the record, discretion is abused.
Commonwealth v. Borovichka, 18 A.3d 1242, 1253 (Pa. Super. 2011)
(citation omitted).
“All relevant evidence is admissible, except as otherwise provided by
law. Evidence that is not relevant is not admissible.” Pa.R.E. 402. Evidence
is relevant if “(a) it has the tendency to make a fact more or less probable
than it would be without the evidence; and (b) the fact is of consequence in
determining the action.” Pa.R.E. 401. “The court may exclude relevant
evidence if its probative value is outweighed by a danger of one or more of
the following: unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative evidence.”
Pa.R.E. 403.
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This Court has explained:
Evidence of a defendant’s distinct crimes are not generally
admissible against a defendant solely to show his bad character
or his propensity for committing criminal acts, as proof of the
commission of one offense is not generally proof of the
commission of another. However, this general proscription
against admission of a defendant’s distinct bad acts is subject to
numerous exceptions if the evidence is relevant for some
legitimate evidentiary reason and not merely to prejudice the
defendant by showing him to be a person of bad character.
Exceptions that have been recognized as legitimate bases for
admitting evidence of a defendant’s distinct crimes include, but
are not limited to:
(1) motive; (2) intent; (3) absence of mistake or accident;
(4) a common scheme, plan or design such that proof of one
crime naturally tends to prove the others; (5) to establish the
identity of the accused where there is such a logical
connection between the crimes that proof of one will naturally
tend to show that the accused is the person who committed
the other; (6) to impeach the credibility of a defendant who
testifies in his trial; (7) situations where defendant’s prior
criminal history had been used by him to threaten or
intimidate the victim; (8) situations where the distinct crimes
were part of a chain or sequence of events which formed the
history of the case and were part of its natural development
(sometimes called “res gestae” exception).
Additional exceptions are recognized when the probative value of
the evidence outweighs the potential prejudice to the trier of fact.
Commonwealth v. Hicks, 151 A.3d 216, 225 (Pa. Super. 2016) (emphasis
omitted); accord Commonwealth v. Yocolano, 169 A.3d 47, 54-55 (Pa.
Super. 2017).
Instantly, the trial court found evidence of Appellant’s prior bad acts
admissible to show “(i) a common scheme, design or plan, (ii) proof of
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[Appellant’s] motive and intent, and (iii) part of the res gestae of the case.”
Trial Court Opinion, 6/8/22, at 17. The trial court reasoned:
The most serious charge facing the [Appellant] was Sexual
Abuse of Children - Production. To prove this charge, the
Commonwealth was tasked with demonstrating that the
[Appellant] knowingly produced child pornography when he took
photographs of his minor daughter in various stages of undress
and with her head cropped from certain photos.
The Rule 404(b) evidence showed that (i) [Appellant]
photographed minor females from his daughter’s school and
cropped the photographs to eliminate other subjects in the scene,
(ii) took photographs of himself, naked, alongside a doll dressed
like his daughter, and (iii) took a photograph of himself simulating
sexual intercourse with the doll dressed like his daughter on his
daughter’s bed. This evidence was relevant to [Appellant’s]
motive and intent in photographing his daughter and cropping
these photographs to focus on her bare-breasted chest. It also
was relevant to establish the “res gestae” or factual background
of the case.
With respect to the Production charge, the [c]ourt had to
determine whether [Appellant] produced the specific photographs
of his daughter “engaging in a prohibited sexual act”. 18 Pa.C.S.
§ 6312(b)(2). A “prohibited sexual act” is defined to include “lewd
exhibition of the genitals or nudity if such nudity is depicted for
the purpose of sexual stimulation or gratification.” 18 Pa.C.S. §
6312(g). Accordingly, the [c]ourt had to determine [Appellant’s]
intent or motive in photographing his daughter bare-chested and
cropping her head off the photo to produce a second image of his
daughter’s bare chest and breasts. That is, was the [Appellant]
doing so for his own “sexual stimulation or gratification”?
The Rule 404(b) evidence was relevant to that
determination. The evidence was relevant to show that that the
[Appellant] was essentially sexualizing his daughter - taking
photographs of her naked breasts and[/]or her licking and sucking
on lollipops. The multiple photographs in [Appellant’s] child
pornography collection of young girls in similar poses and stages
of dress was relevant to that determination. The photographs of
[Appellant] posing naked with a doll dressed like his daughter -
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wearing his daughter’s school uniform - were relevant to that
determination. And the photographs of [Appellant] posing naked
and simulating sexual intercourse with the dressed-up doll, on his
daughter’s bed, was relevant to that determination.
The Rule 404(b) evidence at issue was prejudicial and
served to demonstrate that the [Appellant] did, indeed, produce
the topless photographs of his daughter in violation of 18 Pa.C.S.
§ 6312(b)(2). However other act evidence is designed to be
prejudicial; the question is whether the probative value of the
evidence outweighs the potential for unfair prejudice.
Commonwealth v. Gordon, 673 A.2d 1866 (Pa. 1996).
Here, the probative value of the Rule 404(b) evidence was
not outweighed by any potential for unfair prejudice. The [c]ourt
did not consider or weigh the Rule 404(b) evidence as relevant to
[Appellant’s] character or any possible propensity to commit such
crimes. Rather, the [c]ourt considered the evidence for the
express purposes set forth in Rule 404(b) and Morris, supra.
It is important to note that this was a bench trial so
there was obviously no danger of a jury being inflamed by
uncomfortable photographs. Appellate courts have
concluded that trial courts are presumed to be able to
properly evaluate evidence. See Commonwealth v. Moss,
852 A.2d 374 (Pa. Super. 2004) (concluding that at a bench trial,
a presumption exists that the court properly disregards any
inadmissible evidence).
Trial Court Opinion, 6/8/22, at 17-19 (emphasis added). Upon review, we
discern no error or abuse of discretion, and adopt the trial court’s legal analysis
in disposing of this issue. See id.
In his second issue, Appellant challenges the sufficiency of the evidence
supporting his conviction of sexual abuse of children - photographing,
videotaping, depicting on computer or filming sexual acts production, 18
Pa.C.S.A. § 6312(b). Appellant claims the evidence was insufficient “because
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it was not proven beyond a reasonable doubt that Appellant photographed his
daughter engaging in a prohibited sexual act.” Appellant’s Brief at 41.
Appellant claims his sexual attraction to young girls “does not prove
[Appellant] photographed his daughter, who was not wearing a shirt, for his
own sexual gratification, as required to sustain a conviction under section
6312 of the Crimes Code.” Id. Appellant concedes the photograph “depicts
nudity in so far as [his daughter] does not have a shirt on,” but contends the
“there is absolutely no evidence that [his daughter, in the photo,] is engaging
in anything other than childhood.” Id. at 42. Appellant points out that he did
not include the photo of his daughter with the pornography collection
recovered from his computer. Id. at 43.
Appellant further argues the photo of his daughter is “just one of many,
many photographs that he took of her.” Id. According to Appellant, there is
no proof that he had his daughter pose so he could crop out her head for his
sexual gratification. Id. Appellant asserts:
That [Appellant] later modified the photo to focus on her bare
chest is not sufficient to sustain the conviction here because the
mens rea was not present at the time the photograph was taken.
This photograph was just one of many innocent photos that
[Appellant] took of his daughter….
Id.
Regarding the trial court’s reliance on prior bad acts evidence, Appellant
claims such evidence “can be just as logically tied to the fact that he is
attracted to young girls, in general, rather than his daughter.” Id. at 44.
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Appellant also disputes the relevance of his dressing his doll in his daughter’s
school uniform. Id. Appellant states that his daughter “is not the only person
in her school to wear the uniform and [Appellant] is not the only person to
fetishize the [C]atholic school[]girl uniform.” Id. Appellant directs our
attention to the lack of evidence that he “touched or did anything
inappropriate to his daughter.” Id.
When reviewing a sufficiency challenge, we determine “whether the
evidence at trial, and all reasonable inferences derived therefrom, when
viewed in the light most favorable to the Commonwealth as verdict winner,
are sufficient to establish all elements of the offense beyond a reasonable
doubt.” Commonwealth v. May, 887 A.2d 750, 753 (Pa. 2005) (citation
omitted). “[A] conviction may be sustained wholly on circumstantial evidence,
and the trier of fact—while passing on the credibility of the witnesses and the
weight of the evidence—is free to believe all, part, or none of the evidence.”
Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (citation
omitted). “In conducting this review, the appellate court may not weigh the
evidence and substitute its judgment for the fact-finder.” Id.
The Crimes Code at Section 6312(b) provides:
(2) Any person who knowingly photographs, videotapes, depicts
on computer or films a child under the age of 18 years engaging
in a prohibited sexual act or in the simulation of such an act
commits an offense.
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18 Pa.C.S.A. § 6312(b)(2). “Prohibited sexual act” is defined, in part, as
“nudity if such nudity is depicted for the purpose of sexual stimulation or
gratification of any person who might view such depiction.” 18 Pa.C.S.A. §
6312(g). Here, the trial court found that Appellant photographed his daughter
for sexual stimulation or gratification. Id. As the fact finder, the trial court
expressly determined the Commonwealth “was able to prove its case.” Trial
Court Opinion, 6/8/22, at 20. The trial court further explained:
[Appellant’s] doll, produced by way of Rule 404(b) evidence,
was relevant to [Appellant’s] intent and motive on the [Section
6312 child sexual abuse] counts. The photographs confirmed that
the doll was a replica of a young, school-age girl. It was about
three feet tall with pig tails. The photographs depicted the doll in
[Appellant’s] daughter’s school outfit.
In one of the photos, [Appellant] has the doll positioned in
what appears to be his daughter’s bed, simulating sexual
intercourse. Specifically, he was positioned behind the doll, with
the doll facing forward. His left hand was pulling on one of the
braids of the doll; his right hand was pushing down on the girl’s
neck. He was naked, and had his groin area pressed against the
rear portion of the doll, simulating or literally penetrating the doll
with his penis.
The Commonwealth produced two additional photographs of
[Appellant], showing full frontal nudity, as he held the doll.
Of note, [Appellant] was not charged with anything
involving the doll. But the photos were relevant to [Appellant’s]
motive and intent with respect to the photographs at issue. The
photos with the doll, along with the other evidence,
demonstrated [Appellant] was essentially sexualizing his
daughter - viewing her in a way that would constitute
“sexual gratification”.
[Appellant’s] collection of child pornography consisted of a
large number of prepubescent girls who appeared to be the
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approximate age of his daughter. Many of the photographs
involved girls standing in front of the camera topless, with their
breasts exposed …. Many of the photographs also involved a girl
licking or sucking a lollipop … [;] notably, these photographs were
stored in the same files as photographs of young girls performing
oral sex on adult men….
With respect to the photographs constituting [sexual abuse
of children] both [photographs] show [Appellant’s] daughter
topless, facing the camera. The second photograph is a cropped
version that literally shows nothing but her bare breasted torso.
Again, this is similar to many photographs in his child porn
collection.
The evidence confirmed that [Appellant] liked to crop
photographs so that he could focus on certain parts thereof. There
were additional photographs entered into the record (as Rule
404(b) other act evidence) where he would first take a photograph
of a group of people (one photograph had a young girl with two
adults who may be her parents) and then crop the photograph to
only show the young girl.
In the case of his daughter, the evidence showed that
he cropped both photographs at issue to focus on her bare
breasted torso (modifying the original topless
photograph). Given the totality of the evidence presented at
trial, the Court concluded beyond a reasonable doubt that
[Appellant] possessed, and cropped, these photographs for his
own sexual gratification as contemplated in Section 6312 ….
Trial Court Opinion, 6/8/22, at 20-22 (footnote omitted, emphasis added).
The record supports the trial court’s findings and its legal conclusions are
sound. See id. We therefore affirm the trial court’s rejection of Appellant’s
sufficiency challenge.
Finally, in his third issue, Appellant challenges the discretionary aspects
of his sentence. “A challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right.” Commonwealth v. Grays,
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167 A.3d 793, 815 (Pa. Super. 2017). Prior to reaching the merits of a
discretionary sentencing issue:
We 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. 720]; (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).
Grays, 167 A.3d at 815-16 (citation omitted).
Our review shows Appellant timely filed a notice of appeal, preserved
his claim in a post-sentence motion, and included in his appellate brief a
Pa.R.A.P. 2119(f) statement. Accordingly, we address whether Appellant
raised a substantial question that his sentence is inappropriate under the
Sentencing Code.
Appellant claims his sentences of three to six years in prison for sexual
abuse of children are manifestly excessive given the circumstances of this
case. Appellant’s Brief at 28. Appellant argues the trial court failed to consider
mitigating circumstances, and also considered impermissible sentencing
factors. Appellant raises substantial questions. See Commonwealth v.
Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (“a sentencing court’s failure
to consider mitigating factors raises a substantial question); Commonwealth
v. Allen, 24 A.3d 1058, 1064-65 (Pa. Super. 2011) (“[A] claim that a sentence
is excessive because the trial court relied on an impermissible factor raises a
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substantial question.”) (citations omitted)). Thus, we address Appellant’s
sentencing issues.
Appellant argues the trial court improperly focused on the protection of
the public and not his rehabilitative needs. Appellant’s Brief at 47. Appellant
asserts the trial court failed to discuss his rehabilitative needs or mitigating
factors, “because [the trial court] was not concerned with anything but
punishment.” Id. at 50.
Appellant further claims the trial court relied on impermissible factors.
First, Appellant asserts the trial court improperly based its sentence on
photographs of his daughter for which he was not charged. Id. at 52.
Appellant acknowledges the trial court may consider uncharged conduct at
sentencing, but “it is not permissible to base the sentence on that uncharged
conduct.” Id. (citing Commonwealth v. P.L.S., 894 A.2d 120, 135 (Pa.
Super. 2006). Second, Appellant contends the trial court improperly based
its sentence “on the amount of child pornography [Appellant] possessed….”
Id.
Our standard of review is settled:
Sentencing is a matter vested within the discretion of the trial
court and will not be disturbed absent a manifest abuse of
discretion. An abuse of discretion requires the trial court to have
acted with manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support so as to be clearly
erroneous. A sentencing court need not undertake a lengthy
discourse for its reasons for imposing a sentence or specifically
reference the statute in question, but the record as a whole must
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reflect the sentencing court’s consideration of the facts of the
crime and character of the offender.
Commonwealth v. Rush, 162 A.3d 530, 544 (Pa. Super. 2017) (citations
omitted).
“When imposing a sentence, the sentencing court must consider the
factors set out in 42 [Pa.C.S.A.] § 9721(b), that is, the protection of the public,
gravity of offense in relation to impact on victim and community, and
rehabilitative needs of the defendant.” Commonwealth v. Fullin, 892 A.2d
843, 847-48 (Pa. Super. 2006) (citations omitted).
The trial court explained Appellant’s sentence as follows:
On Counts one and two, [sexual abuse of children] I will run
these - for the ease of understanding the sentence, I’m going
to make one and two concurrent with each other. [Appellant]
is sentenced to imprisonment on both for not less than three
nor more than six years in [state prison].
Each one individually is sentenced above the standard
range, but they are running concurrent with one another.
On counts twelve through a hundred and eleven … the
sentence of all of those counts is concurrent with each other
and is two to four years but that runs consecutively to the
sentences at count one and two.
On count three, I’m imposing a period of probation in the
amount of twelve [sic] years.
So it is a cumulative sentence of five to ten years’
incarceration with seven years consecutive probation.
N.T., 3/15/22, at 86-87 (emphasis added).
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The trial court had the benefit of a presentence investigation report
(PSI). See Docket Entry 12/6/21 (ordering a PSI); N.T., 3/15/22, at 86 (trial
court indicating it reviewed the reports it had ordered). “[W]here the trial
court is informed by a pre-sentence report, it is presumed that the court is
aware of all appropriate sentencing factors and considerations, and that where
the court has been so informed, its discretion should not be
disturbed.” Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super.
2009) (citation omitted). In addition, we can assume the court was aware of
the relevant information regarding Appellant’s character and weighed those
considerations along with mitigating statutory factors. Commonwealth v.
Hill, 210 A.3d 1104, 1117 (Pa. Super. 2019).
Our review discloses the trial court also had the benefit of Appellant’s
testimony regarding his drug addictions and efforts at rehabilitation. See
N.T., 3/15/22, at 75-77. In sentencing Appellant, the trial court expressly
considered Appellant’s lack of criminal record, his family support, his
rehabilitation of an alcohol issue and other mitigating factors. Id. at 82-84.
Thus, the trial court appropriately considered mitigating evidence.
Our review also discloses the trial court considered the “sheer number
of [Appellant’s] photographs [depicting child pornography]” at sentencing.
See id. at 84. However, in addition to the volume, the trial court considered
the “extreme” nature of the “horrific” photos. Trial Court Opinion, 6/8/22, at
86-87. The trial court explained:
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The reality is that this case was more than a “typical”
possession of child pornography case. [Appellant] did not “only”
possess a collection of child pornography. [Appellant] was
actively and surreptitiously taking pictures of young girls at the
Mater Dei Catholic School, cropping them and saving them in his
collection of photographs. He was taking sexualized photographs
of his young daughter - cropping them to provide focus on her
bare breasts.
At the sentencing hearing the [c]ourt saw additional
photographs of [Appellant’s] daughter squeezing her nipples and
a close up of her crotch in underwear. These additional
photographs were admitted as relevant to sentencing. The
photographs were not entered at trial, but certainly
validated the [c]ourt’s conclusion following trial that
[Appellant] had sexualized his young daughter in his mind
and had produced the photographs in Counts one and two
for the purposes of his “sexual gratification”.
… Appellant’s child pornography collection consisted
of “tens of thousands” of photographs and videos of very
young, prepubescent girls. It took Detective Greco
“months” to review the collection. Many of these images
were horrific - young girls being violated by adult penises
and fake penises vaginally, anally and orally and/or
depicted with ejaculate on their faces and bodies. This
immense collection of extreme child pornography was an
additional aggravating factor that warranted the sentence
structure imposed by the [c]ourt.
Factors to be considered when determining a defendant’s
sentence include the character of the defendant and the particular
circumstances of the offense in light of the legislative guidelines
for sentencing. Commonwealth v. Scott, 860 A.2d 1029 (Pa.
Super. 2004).
The sentence imposed must be consistent with the
protection of the public, the gravity of the offense and the
rehabilitative needs of the defendant. Id.
The [c]ourt’s sentence was the product of careful
deliberation of each of these factors. The [c]ourt explained the
reasons for its sentence in great detail. The sentences for Counts
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one and two, while both starting at the top of the aggravated
range, were imposed concurrently with each other. The
sentences on Counts 12 through 111, two to four years of
imprisonment, were imposed consecutively to Counts one and two
but concurrently with each other. The sentence was not unduly
harsh by any means. The sentence was structured to arrive at an
aggregate total that was fair and appropriate given the totality of
the multiple sentencing factors.
The [c]ourt considered all the relevant sentencing factors in
this case and imposed an appropriate sentence. [Appellant’s]
sentence was proper.
Trial Court Opinion, 6/8/22, at 26 (emphasis added).
We agree with the trial court. Appellant’s sentence is not excessive, and
his claim to contrary does not merit relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2023
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