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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CLINTON REED KUHLMAN, : No. 753 WDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, February 25, 2016,
in the Court of Common Pleas of Beaver County
Criminal Division at No. CP-04-CR-0001026-2014
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND SOLANO, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 17, 2017
Clinton Reed Kuhlman appeals the judgment of sentence in which the
Court of Common Pleas of Beaver County sentenced him to serve an
aggregate sentence of one year less one day to two years less one day of
imprisonment in the Beaver County Jail plus fifteen years’ probation for
five counts of distribution of child pornography, ten counts of possession of
child pornography, and one count of criminal use of a communications
facility.1
The pertinent facts and testimony, as recounted by the trial court, are
as follows:
Dwayne Tabak is employed as a Special Agent
with the Pennsylvania Office of Attorney General with
the child predator section. He testified as follows:
1
18 Pa.C.S.A. §§ 6312(c), 6312(d), and 7512(a), respectively.
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On March 18, 2014 Agent Tabak received a
referral from a detective in the Allegheny County
District Attorney’s Office regarding an internet child
pornography investigation; the case was referred
because the target of the investigation resided
outside of Allegheny County. The information
received from Allegheny County included a report
from the National Center for Missing and Exploited
Children, which identified an IP Address that was
used to upload images of child pornography to a
website named “Tinypic” on January 11 and 12,
2014. The detective from Allegheny County had
determined that the specified IP Address was owned
by the internet service provider Comcast and then
obtained a Court Order requiring Comcast to provide
information as to the subscriber to whom the
IP Address was assigned; Comcast identified
[appellant] as the subscriber. Agent Tabak made
efforts to learn the identities of all persons residing
at [appellant’s] address and then obtained a search
warrant, which was executed on May 28, 2014.
When the search warrant was executed
[appellant], his mother and his father were present
at the residence. Agent Tabak provided [appellant]
a form titled “Advice of Rights and Waiver of Rights”,
setting forth [appellant’s] rights under Miranda [v.
Arizona, 384 U.S. 436 (1966)], which [appellant]
reviewed and signed. Agent Tabak then spoke with
[appellant], who acknowledged that he lived in the
residence with his parents and he subscribed to
Comcast as an internet service provider. [Appellant]
further acknowledged that he owned and was the
sole user of the computer located in the basement
and that he used a “Yahoo” account named
“clintster_38”.
As Agent Tabak was speaking with [appellant,]
other law enforcement personnel were conducting a
preliminary review of the computers in the home and
found child pornography in the computer [appellant]
admitted belonged to him; these officers retrieved
thirty (30) photographs from the computer, including
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certain images that had been posted to “Tinypic”
from [appellant’s] IP Address. [Appellant] was then
arrested and transported to the Rochester Police
Station. At the police station [appellant] was shown
the pictures uploaded to “Tinypic” from his
IP Address and he acknowledged that he had
previously viewed such photographs on his
computer.
Agent Tabak testified that sixteen (16) images
of child pornography had been posted to “Tinypic”
from [appellant’s] IP Address and he decided to
charge [appellant] with five (5) counts of Distribution
of Child Pornography; he further testified that of the
thirty (30) images of child pornography he had been
provided from [appellant’s] computer during the
initial forensic review, he decided to charge
[appellant] with ten (10) counts of Possession of
Child Pornography.
Timothy Haney is employed by the
Pennsylvania Office of Attorney General as a Special
Agent and Computer Forensic Examiner. He testified
as follows:
Agent Haney assisted in the execution of the
search warrant at [appellant’s] residence on May 28,
2014. On this date he performed a preliminary
investigation of a desktop computer and internal
hard drive and created a “Preview Report”. During
his examination of the hard drive he discovered
more than 250 images of child pornography; all of
the files were found in a photo sharing folder
associated with “Yahoo” accounts with the profile
names “clintster_38” and “cool_3822”. During his
examination of the desktop computer he again found
more than 250 images of child pornography in a
photo sharing folder associated with the same
“Yahoo” accounts. Agent Haney explained that these
images existing in the “Yahoo” photo sharing folder
indicated that such images had been shared (sent or
received) in a “Yahoo Messenger” chat.
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John O’Brien is employed as a Supervisory
Special Agent with the Pennsylvania Office of
Attorney General, Bureau of Special Investigations,
Computer Forensics Unit. He testified as follows:
Agent O’Brien examined four devices related to
this case, an internal hard drive from a computer, a
thumb driver (or USB drive), a desktop computer
system and an [sic] USB connected external hard
drive. He determined that three of the devices, the
internal hard drive, the desktop computer and the
USB external hard drive, had accessed the internet,
or were connected to a system that had accessed the
internet, via the previously specified IP Address
(assigned to [appellant] by Comcast) over one
thousand times. Agent O’Brien discovered over
300 files containing child pornography on the internal
hard drive; he discovered 236 images of child
pornography in a “Yahoo” photo sharing folder. He
discovered that the hard drive contained a program
named “ARIES[,”] which provided access to a
network providing users the ability to search for and
download files; review of this program’s download
history indicated that over 1,400 files had been
downloaded with file names that were indicative of
child pornography. Agent O’Brien further discovered
that the hard drive’s internet search history revealed
searches made through “Yahoo” for “nude preteen
girls” and numerous similar terms. He also
discovered transcripts of chats made through a
“Yahoo” program; these chats involved conversations
between “cool_3822” and various other users
regarding explicit sexual activity with children.
These transcripts also indicated that the user
“cool_3822” had shared child pornography with other
chat participants.
Agent O’Brien found similar evidence on the
desktop computer he examined. The “user profile”
of the Windows operating system installed on the
desktop computer was named “Clint” and the
operating system was registered to “Clint Kuhlman”.
Also the “desktop” of the Windows operating system
(i.e., the screen shown when a user accesses the
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computer) contained a folder named “New NN”,
which contained 91 images of child pornography.
[Appellant] acknowledge[d] participating in
chats with the Yahoo username “cool_3822” and that
certain chats included the topic of sexual relations
with children. [Appellant] denied ever intentionally
or knowingly viewing or distributing child
pornography and further averred that his statements
to Agent Tabak were coerced by Agent Tabak’s
threat to have [appellant’s] nieces tested for sexual
assault, allegations which Agent Tabak denied. The
Court observes that [appellant] and his Counsel
stipulated that photographs pertaining to offenses
charged in Counts 1 through 15 were child
pornography.
Trial court opinion, 6/16/16 at 2-7 (footnotes omitted).
Following trial, a jury convicted appellant of the charges for which he
was sentenced. Appellant filed post-sentence motions that the trial court
denied on April 22, 2016. Appellant timely appealed to this court. On
May 20, 2016, the trial court ordered appellant to file a concise statement of
errors complained of on appeal in accordance with Pa.R.A.P. 1925(b).
Appellant complied on June 8, 2016.
Appellant contends that his convictions should be reversed because
the verdict was against the weight of the evidence presented.
[T]he weight of the evidence is
exclusively for the finder of fact who is
free to believe all, part, or none of the
evidence and to determine the credibility
of the witnesses. An appellate court
cannot substitute its judgment for that of
the finder of fact . . . thus, we may only
reverse the lower court’s verdict if it is so
contrary to the evidence as to shock
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one’s sense of justice. Moreover, where
the trial court has ruled on the weight
claim below, an appellate court’s role is
not to consider the underlying question
of whether the verdict is against the
weight of the evidence, . . . rather,
appellate review is limited to whether the
trial court palpably abused its discretion
in ruling on the weight claim.
Commonwealth v. Kim, 888 A.2d 847, 851
(Pa.Super. 2005) (citations and quotations omitted).
A motion for a new trial based on a challenge to the
weight of the evidence concedes the evidence was
sufficient to support the verdict. Commonwealth v.
Davis, 799 A.2d 860, 865 (Pa.Super. 2002).
Commonwealth v. Jarowecki, 923 A.2d 425, 433 (Pa.Super. 2007).
Appellant argues that the trial court abused its discretion when it
determined that the verdicts were not against the weight of the evidence in
light of appellant’s testimony that he was the owner of the computer and the
Yahoo usernames, but that he had not knowingly or intentionally requested
or shared any files regarding child pornography. While appellant admits that
he engaged in chatrooms where discussions of child pornography took place,
he asserts that he just received photos and/or videos from other members
of the chatroom and clicked on them inadvertently. Further, Agent Timothy
Haney stated that files of child pornography were present in the Yahoo photo
sharing folder but could not say that the files were intentionally distributed
to other users.
The child pornography offenses for which appellant was convicted are
set forth as follows:
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(c) Dissemination of photographs,
videotapes, computer depictions and
films.--Any person who knowingly sells,
distributes, delivers, disseminates, transfers,
displays or exhibits to others, or who
possesses for the purpose of sale, distribution,
delivery, dissemination, transfer, display or
exhibition to others, any book, magazine,
pamphlet, slide, photograph, film, videotape,
computer depiction or other material depicting
a child under the age of 18 years engaging in a
prohibited sexual act or in the simulation of
such act commits an offense.
(d) Child pornography.--Any person who
intentionally views or knowingly possesses or
controls any book, magazine, pamphlet, slide,
photograph, film, videotape, computer
depiction or other material depicting a child
under the age of 18 years engaging in a
prohibited sexual act or in the simulation of
such act commits an offense
18 Pa.C.S.A. § 6312(c-d).
With respect to this weight claim, the trial court reasoned:
The Commonwealth presented overwhelming
evidence, as set forth above, that the computer and
related electronic devices located in [appellant’s]
bedroom were used to possess and distribute child
pornography. Further, a substantial amount of
circumstantial evidence (including, but not limited to,
the computer’s location in the home, the fact that
the only other residents of the home were
[appellant’s] elderly parents, and [appellant’s]
admissions that he was the sole user of the
computer and that he engaged in internet chats
regarding the sexual abuse of children) proved that
[appellant] was the individual operating the
computer to possess and distribute child
pornography and that he knowingly did so. . . . The
jury, acting as the fact-finder, was free to disbelieve
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[appellant’s] self-serving testimony that he did not
knowingly possess or distribute child pornography.
Trial court opinion, 6/16/16 at 10-11.
Here, appellant admitted that he was the owner and sole user of the
computer at his residence. (Notes of testimony, 11/10/15 at 117-118.) The
National Center for Missing and Exploited Children identified an Internet
Protocol Address that had been used to upload child pornography images to
a website known as Tinypic on January 11-12, 2014. (Id. at 91-93.)
Comcast identified appellant as the person to whom the Internet Protocol
Address was assigned. (Id. at 93-96.) Law enforcement personnel located
child pornography on the computer including some images that were posted
to Tinypic from appellant’s computer. Appellant admitted viewing these
images on his computer. (Id. at 117-121.) Further, Special Agent
John O’Brien of the Pennsylvania Office of Attorney General, Bureau of
Special Investigation Computer Forensics Unit examined appellant’s
computer’s hard drive, a thumb drive device, a desktop computer system,
and a USB connected external hard drive in connection with the case.
(Notes of testimony, 11/12/15 at 21.) His examination revealed evidence of
the possession of child pornography as well as searches for pornographic
subjects and chat transcripts which indicated that appellant had shared child
pornography with other chat participants. (Id. at 23-35.) Appellant denied
that he possessed or disseminated child pornography. (Id. at 68-71.) The
jury, as fact-finder, apparently credited the Commonwealth’s testimony.
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See Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa.Super. 2014)
(the jury as finder-of-fact determines the credibility of witnesses and weight
of evidence produced is free to accept all, part, or none of the evidence).
Appellant essentially asks this court to reweigh the evidence and
assess the credibility of the witnesses presented at trial. That task is beyond
this court’s scope of review. See Commonwealth v. Talbert, 129 A.3d
536, 546 (Pa.Super. 2015). The jury is the factfinder and found that the
credible evidence identified appellant as the possessor and distributor of
child pornography. That verdict is not so contrary to the evidence as to
shock the conscience. Based on the record before this court, we do not find
that the trial court abused its discretion when it declined to grant appellant’s
post-trial motion concerning the weight of the evidence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/17/2017
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