Pennsylvania Superior Court Reports
COMMONWEALTH v. KOEHLER, 2073 WDA 2005 (Pa.Super.
12-8-2006) COMMONWEALTH OF PENNSYLVANIA, Appellee v. JOHN
C. KOEHLER, Appellant. No. 2073 WDA 2005. Superior Court
of Pennsylvania. Filed December 8, 2006.
Appeal from the Judgment of Sentence November 1, 2005. In
the Court of Common Pleas of Erie County. Criminal at No.:
NO. 2004-00981.
BEFORE: STEVENS, MUSMANNO, and PANELLA, JJ.
OPINION BY STEVENS, J.
¶ 1 This is an appeal from the judgment of sentence
entered by the Court of Common Pleas of Erie County after a
jury convicted Appellant of 14 counts of Sexual Abuse of
Children/Possession of Child Pornography, 18 Pa.C.S.A.
§ 6312(d), infra. Appellant challenges the denial of
his suppression motion, the sufficiency of evidence in
support of the jury verdicts, and the legality of imposing
14 separate punishments for each conviction under Section
6312(d). We affirm.
¶ 2 The trial court has aptly summarized the factual
and procedural background of the case, in pertinent part,
as follows:
On May 13, 2004, a Criminal Information was filed
charging Appellant with nineteen (19) counts of Possession
of Child Pornography [under Section 6312(d)] [footnote 1
omitted]. The charges stem [from the following
investigations]:
On or about August 15, 2003, Agent William Wehrle of the
Pennsylvania Board of Probation and Parole, the parole
agent for [Appellant], was contacted by Eric Smith of the
Millcreek Police Department. Officer Smith informed Agent
Wehrle that he believed [Appellant] had been involved
with two young female runaways. Agent Wehrle began an
investigation into this matter because [Appellant’s]
parole contract provided that he was to have no contact
with minor females.
Agent Wehrle interviewed a seventeen year old girl [not
one of the runaways] who told him that she had gone to
dinner with [Appellant]. She indicated to Agent Wehrle
that she had gone out with [Appellant], that he knew how
old she was, and that he asked her if she knew anyone who
would want to go out with him[, and that he was looking
for sex from somebody.] She also stated [her familiarity
with the fact that Appellant] worked at a cellular phone
kiosk at the mall and that a number of minors hung around
[Appellant’s] kiosk. [On the basis of this information,
Agent Wehrle obtained authorization from his supervisor
to arrest Appellant on a parole violation and to search
Appellant’s place of business, car, and residence. To
accomplish this,] Agent Wehrle requested assistance from
the Millcreek Police Department.
Agent Wehrle met with three uniformed police officers at
the Millcreek mall. Agent Wehrle took [Appellant] into
custody for a violation of the special conditions of his
parole and informed him that he was going to search his
business, his vehicle, and his residence. At that time,
[Appellant] informed Agent Wehrle that he had another
apartment in addition to his approved residence, and he
gave Agent Wehrle permission to search that apartment. He
also provided Agent Wehrle with the keys to his car and
told him where it was. [Appellant] did not object to the
search of the kiosk. [Appellant did not, however, give
consent to search his approved residence.]
[While still at the kiosk, Appellant] told Agent Wehrle
that he did have contact with the two runaways and showed
Agent Wehrle that he had there [sic] phone numbers stored
in his cell phone and allowed Agent Wehrle to call the
number. Agent Wehrle spoke with the girls’ mother [right
then, who informed Agent Wehrle that the girls had since
returned to her in Ohio.] Agent Wehrle also found
[Appellant’s personal] digital camera in the kiosk[, the
type that you hook up to a computer and print the
pictures.]
Agent Wehrle then went to [Appellant’s] approved
residence. Agents Michael Wilcox and Vanessa Booker went
along as back up. No police officers were present at the
residence. [Appellant’s] aunt showed the agents to
[Appellant’s] room as well as two other areas where
[Appellant] had property. [Appellant] had a computer in
his bedroom, and Agent Wehrle asked Agent Wilcox to
access it. Agent Wilcox moved the mouse, and the monitor
came on. Agent Wilcox opened a file that had the word
“nude” in the title. A picture of a nude female came onto
the screen. Agents found about twenty-five other photos of
females who appeared to be minors. . . . Agent Wehrle had
Agent Wilcox print out the photos and then ended the
search. Agent Wehrle seized the digital camera, two cell
phones, the e-mail addresses [contained in a shoebox], a
book about how to come up with a new identity, a book
about making a silencer for a gun, Mastercard bills, and
a black nylon holster.
Agent Wehrle contacted the FBI office in Erie because he
believed they had found criminal activity that was beyond
the scope of a parole violation. Agent Wehrle was then
contacted by a member of the Erie County District
Attorney’s Office and the City of Erie Police Department.
Two uniformed police officers and Detective Barber of the
Sex Crimes Unit were dispatched to [Appellant’s]
residence. [Concluding the materials recovered were
sexually explicit photos of minors, Detective Barber
applied for a search warrant for Appellant’s bedroom.]
[T]he execution of [the] search warrant . . . by
Detective Barber . . . [occurred that same day]. Detective
Barber seized Appellant’s computer (CPU tower, printer,
monitor, keyboard & mouse), disks, CD’s and other memory
storage devices. The seized computer was sealed with
evidence tape and all items were taken to ECPD
headquarters and locked up over the weekend until August
18, 2003. On that date, all of the items seized were
transferred to a property evidence locker and remained
there until August 25, 2003, when Detective Barber removed
them and took the items to the Erie County District
Attorney’s Office. Detective Barber requested that they
perform a computer forensic analysis of the seized items.
Erie County Detective Jessica Lynn performed a computer
forensic examination of Appellant’s computer hard-drive by
creating and utilizing an image of the hard-drive, to
avoid corrupting or contaminating the original. Detective
Lynn used a computer forensic software program known as
Forensic Tool Kit (“FTK”) to analyze the image of
Appellant’s computer hard-drive in September 2003.
Detective Lynn testified she discovered two hundred
fifty-six (256) video clips depicting children, and
bookmarked three hundred thirty-five (335) items as
possibly being child pornography. Detective Lynn turned
this information over to Detective Barber, who used it
to form the basis for the nineteen (19) charges filed
against Appellant. The video clips forming the basis of
these charges consisted of several different young females
engaged in various acts of sexual exhibition, in either a
nude or partially nude state. [fn2] These video clips
also included one video clip of one young nude female
urinating into another young nude female’s mouth, and
another video clip depicted a young nude female engaged in
the act of masturbation with a vibrator. [fn3]
On June 24, 2004, Appellant filed an Omnibus Pre-Trial
Motion seeking suppression of the evidence seized as a
result of the search warrant. The Honorable Fred P.
Anthony issued an Order on June 30, 2004, scheduling a
hearing to take place on August 23, 2004. [After several
continuances,] an evidentiary hearing was held before
Judge Anthony to address Appellant’s Omnibus Pre-Trial
Motion. . . . On December 23, 2004, Judge Anthony issued
an Opinion denying Appellant’s Suppression Motion.
* * *
On July 19, 2005, after a four-day jury trial, Appellant
was found guilty of fourteen (14) counts of Sexual Abuse
of Children/Possession of Child Pornography. [fn4]
On July 22, 2005, Appellant filed a Motion for New Trial
that was denied by Order dated August 1, 2005. On August
18, 2005, the Commonwealth filed a Motion to Continue
Sentence in order to have Appellant assessed as a sexually
violent predator, which could not be completed by the
Sexual Offenders Board until October 18, 2005. An Order
was issued on August 22, 2005, granting the continuance
and scheduling Appellant’s sentence for November 1, 2005.
. . .
On November 1, 2005, Appellant was sentenced [to serve
twelve (12) months to twenty-four (24) months
incarceration in a state correctional facility on each of
his fourteen convictions, sentences to run consecutively.]
Therefore, Appellant’s aggregate sentence was one hundred
sixty-eight (168) months to three hundred thirty-six
months, or fourteen (14) to twentyeight (28) years’
[imprisonment.]
On November 4, 2005, Appellant filed a Motion to Modify
and Reduce Sentence that was denied by Order dated
November 7, 2005. Appellant filed a Notice of Appeal on
November 22, 2005. [footnote omitted]. The Court issued an
Order dated November 29, 2005, requiring a Concise
Statement of Matters Complained of on Appeal to be filed
within fourteen (14) days. On December 7, 2005, Appellant
filed a Concise Statement of Matters Complained of on
Appeal and an Amended Concise Statement of Matters
Complained of on Appeal was filed on December 29, 2005. .
. .
Trial Court Opinion, 2/16/06, at 1-6.
¶ 3 Appellant raises four issues on appeal:
I. WHETHER THE SUPPRESSION COURT ERRED IN DENYING
APPELLANT’S MOTION TO SUPPRESS THE EVIDENCE?
II. WHETHER THE SUPPRESSION COURT COMMITTED REVERSIBLE
ERROR IN DENYING APPELLANT’S MOTION TO SUPPRESS THE
EVIDENCE WHERE THE APPLICATION FOR THE SEARCH WARRANT WAS
NOT SUPPORTED BY PROBABLE CAUSE?
III. WHETHER THE JURY’S VERDICTS WERE BASED ON
INSUFFICIENT EVIDENCE?
IV. WHETHER THE IMPOSITION OF 14 SEPARATE SENTENCES
TOTALING 28 YEARS OF INCARCERATION CONSTITUTES AN ILLEGAL
SENTENCE IN VIOLATION OF THE DOUBLE JEOPARDY PROVISIONS OF
THE UNITED STATES CONSTITUTION?
Brief of Appellant at 6.
¶ 4 Our standard of review in addressing a challenge
to a trial court’s denial of a suppression motion is
limited to determining whether the factual findings are
supported by the record and whether the legal conclusions
drawn from those facts are correct. Commonwealth v.
Levanduski, 907 A.2d 3 (Pa.Super. 2006). Our scope of review
is limited:
[W] e may consider only the evidence of the prosecution
and so much of the evidence for the defense as remains
uncontradicted when read in the context of the record as a
whole. Where the record supports the findings of the
suppression court, we are bound by those facts and may
reverse only if the court erred in reaching its legal
conclusions based upon the facts.
Commonwealth v. Jones, 874 A.2d 108, 115 (Pa.Super. 2005)
(internal citations and quotation marks omitted).
¶ 5 Appellant contends that the parole agents who
initiated the search of his residence and computer files
did so without reasonable suspicion to believe that either
would contain evidence of a violation of the conditions of
his parole. We disagree.
¶ 6 61 P.S. § 331.27a, Searches by State
Parole Agents, specifically grants authority to parole
agents to conduct personal searches and property searches
of parolees without a warrant and without probable cause.
The law provides, in pertinent part:
(a) State parole agents are in a supervisory relationship
with their offenders. The purpose of this supervision is
to assist the offenders in their rehabilitation and
reassimilation into the community and to protect the
public.
(b) State parole agents are authorized to search the
person and property of State offenders in accordance with
the provisions of this section. . . .
* * *
(d)(2) A property search may be conducted by an agent if
there is reasonable suspicion to believe that the real or
other property in the possession of or under the control
of the offender contains contraband or other evidence of
violations of the conditions of supervision.
* * *
(6) The existence of reasonable suspicion to search shall
be determined in accordance with constitutional search and
seizure provisions as applied by judicial decision. In
accordance with such case law, the following factors,
where applicable, may be taken into account:
(i) The observations of agents.
(ii) Information provided by others.
(iii) The activities of the offender.
(iv) Information provided by the offender.
1 (v) The experience of agents with the offender.
(vi) The experience of agents in similar circumstances.
(vii) The prior criminal and supervisory history of the
offender.
(viii) The need to verify compliance with the conditions
of supervision.
61 P.S. § 331.27a (in pertinent part).
¶ 7 Cases have explained why reasonable suspicion
suffices to authorize warrantless searches of parolees.
“Because ‘the very assumption of the institution’ of parole
is that the parolee ‘is more likely than the ordinary
citizen to violate the law,’ the agents need not have
probable cause to search a parolee or his property; instead
reasonable suspicion is sufficient to authorize a search.”
Commonwealth v. Curry, 900 A.2d 390, 394 (Pa.Super. 2006)
(quoting Commonwealth v. Moore, 805 A.2d 616, 619
(Pa.Super. 2002)). Parolees agree to “endure warrantless
searches” based only on reasonable suspicion in exchange
for their early release from prison. Id. (quoting
Commonwealth v. Appleby, 856 A.2d 191, 195 (Pa.Super.
2004)).
¶ 8 These principles and the facts of the present
case compel the conclusion that there was reasonable
suspicion to believe that Appellant’s residence contained
evidence of violations of the conditions of his parole.
Prior to entering Appellant’s approved place of residence,
Agent Wehrle’s investigation had uncovered the following:
statements from a seventeen year old girl that Appellant had
taken her out to dinner and asked if she knew anyone
interested in having sex with him, and that many minor
females frequented Appellant’s approved place of business
at a mall cell phone kiosk; that Appellant had admitted
contact with two other teenage girls who had runaway from
Ohio, having their phone numbers stored in the memory of
his cell phone; and that Appellant kept a digital camera at
his place of business, the type of camera that can be
connected to a home computer in order to download and print
the photos.
¶ 9 This collection of evidence raised reasonable
suspicions that Appellant was making sexual advances to
minor females, that he had somehow gained correspondence
with two more minor female runaways, and that he was taking
pictures of other minors at his place of work and
downloading the photos in his home computer. In Agent
Wehrle’s experience, offenders with Appellant’s background
often gain correspondence with minors through email, and
take photos and store them in their home computers. N.T.
9/15/04 at 25. In view of these circumstances, we conclude
that there was reasonable suspicion to conduct a warantless
property search of Appellant’s approved residence and the
computer therein.
¶ 10 Appellant next raises the related challenge
that Detective Barber’s application for a search warrant
was not supported by probable cause. Specifically,
Appellant contends that the application averred only to
nude photographs of minors, which alone does not rise to
the child pornography proscribed under 18 Pa.C.S.A.
6312(d). We disagree.
¶ 11 Under 18 Pa.C.S.A. § 6312, Sexual Abuse
of Children, Subsection 6312(d), Possession of Child
Pornography, provides:
Any person who 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 is guilty of a
felony of the third degree.
18 Pa.C.S.A. 6312(d). Under Subsection 6312(a), Definition,
a “prohibited sexual act” is defined as:
sexual intercourse as defined in section 3101 (relating
to definitions), masturbation, sadism, masochism,
bestiality, fellatio, cunnilingus, lewd exhibition of the
genitals or 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(a) (emphasis added).
¶ 12 The affidavit of probable cause filed in
support of the search warrant states that Detective Barber
was contacted by Agent Wehrle for what Agent Wehrle
believed was child pornography. Further down the affidavit,
Detective Barber describes the photographs stored in
Appellant’s computer. The photos
“appeared to be of young females, under the age of 18
years old, one totally nude showing the female breast and
genitals. Others partially nude showing breast, and the
touching of breast. . . . This affiant, being a City of
Erie Police Officer for the past 12 Ë? years and a
Detective assigned to the Sex Crimes Unit for the past 3
years, believe [sic] this search warrant is necessary
for the completion of this case.”
C.R. #7.
¶ 13 Existence of probable cause is evaluated under
a “totality of the circumstances” standard. Commonwealth v.
Smith, 784 A.2d 182, 187 (Pa.Super. 2001). An issuing
authority must make a practical, commonsense decision
whether, given all the circumstances set forth in the
affidavit, including the veracity and basis of knowledge of
any hearsay statements, there is a fair probability that
contraband or evidence of a crime will be found in a
particular place. Id.
¶ 14 The totality of circumstances presented to the
magistrate here provided probable cause to search
Appellant’s residence and computer for photographs
depicting prohibited sexual acts and child pornography as
defined under Section 6312. The affidavit of probable cause
informed the magistrate that a detective with three years’
experience with the Sex Crimes Unit viewed in Appellant’s
residence numerous photographs of nude and partially nude
minor females, showing genitalia, with some involving
touching of breasts, and thus believed that a search warrant
was necessary to complete investigation into the case. The
standards of “practicality” and “common sense” that guide
issuing authorities require the conclusion in this instance
that such depictions were “for the purpose of sexual
stimulation or gratification of any person who might view
such depiction” as proscribed under Section 6312.
Accordingly, Appellant’s challenge to probable cause
supporting the search warrant of his residence is wholly
void of merit.
¶ 15 Appellant next raises several challenges to the
sufficiency of the evidence offered to prove the charges
against him. In analyzing the sufficiency of the evidence,
we view all the evidence admitted at trial in the light
most favorable to the Commonwealth as verdict winner, and
draw all reasonable inferences in its favor. We then
determine whether the evidence was sufficient to have
permitted the trier of fact to find that each element of
the crimes charged was established beyond a reasonable
doubt. Moreover, it is the province of the trier of fact to
pass upon the credibility of witnesses and the weight to be
accorded the evidence, and the factfinder is free to
believe all, part, or none of the evidence. Commonwealth v.
Davidson, 860 A.2d 575 (Pa.Super. 2004), appeal granted at
582 Pa. 356, 871 A.2d 185 (2005).
¶ 16 18 Pa.C.S.A. § 6312(d) contains three
elements. There must be a depiction of an actual child
engaged in a prohibited sexual act or simulation of such
act; the child must be under the age of 18; and the
defendant must have possessed or controlled the depiction
knowingly. Id.
¶ 17 The crux of Appellant’s first sufficiency
challenge is that evidence failed to prove he possessed or
constructively possessed twelve video clips[fn1] on August
15, 2003, the date delineated in the criminal information
against him. Because the twelve video clips downloaded on
his computer had, prior to the August 15, 2003 seizure of
Appellant’s computer, been deleted to an unallocated hard
drive space inaccessible to him, he contends that it would
have been impossible for him to constructively possess the
materials on the August 15, 2003 as charged.
¶ 18 It is the duty of the prosecution to “fix the
date when an alleged offense occurred with reasonable
certainty. . . .” Commonwealth v. Jette, 818 A.2d 533, 535
(Pa.Super. 2003) (citation omitted). The purpose of so
advising a defendant of the date when an offense is alleged
to have been committed is to provide him with sufficient
notice to meet the charges and prepare a defense.
Commonwealth v. Gibbons, 567 Pa. 24, 784 A.2d 776 (2001).
¶ 19 However, “[d]u[e] process is not reducible to a
mathematical formula,” and the Commonwealth does not always
need to prove a single specific date of an alleged crime.
Commonwealth v. Devlin, 460 Pa. 508, 515-516, 333 A.2d 888,
892 (1975). Additionally, “indictments must be read in a
common sense manner and are not to be construed in an
overly technical sense.” Commonwealth v. Einhorn, 206 Pa.
Super. Lexis 3779 at *68 (Pa.Super. November 14, 2006)
(quoting Commonwealth v. Ohle, 503 Pa. 566, 588, 470 A.2d
61, 73 (1983)). Permissible leeway regarding the date
provided varies with, inter alia, the nature of the crime
and the rights of the accused. Commonwealth v. Einhorn, 206
Pa. Super. Lexis 3779 at *68 (Pa.Super. November 14, 2006).
See Pa.R.Crim.P. 560(B)(3), stating that it shall be
sufficient for the Commonwealth to provide in the
information, if the precise date of an offense is not known,
an allegation that the offense was committed on or about
any date within the period fixed by the statute of
limitations.
¶ 20 Contrary to Appellant’s claim, the criminal
information does not allege possession existed precisely on
August 15, 2003. Rather, the information alleges possession
“on or about August 15, 2003,” with August 15th clearly
marking the timeframe’s logical endpoint as authorities
seized his computer on that date. Given the seizure, the
“on or about” language in the information necessarily meant
that the prosecution would confront Appellant at trial with
evidence that his computer contained child pornography
intentionally downloaded or saved therein on or before the
date his computer was seized. Indeed, the intentional
downloading of each video clip — an act this Court
has recently recognized constitutes possession under
Section 6312(d)[fn2] — would have necessarily
predated the August 15th search and seizure of the
computer.
¶ 21 The question then becomes whether the evidence
involved a time period contemplated within the reasonable
scope of “on or about August 15, 2003” such that the
evidence supported each charge as alleged in the criminal
information. We conclude that evidence that Appellant had
downloaded each of the twelve video clips over a three week
span ending just one month prior to August 15, 2003 was
well within the timeframe contemplated by the criminal
information. Likewise, evidence that Appellant thereafter
stored each video clip in the hard drive’s user-accessible
“recycler” for at least some, if not most, of the remaining
time leading up to August 15, 2003, before deleting them to
an inaccessible hard drive space also came within the
reasonable scope of the “on or about” language in the
criminal information.
¶ 22 Accordingly, the evidence of possession offered
against Appellant with respect to the twelve video clips at
issue was well within the timeframe contemplated by the
criminal information and sufficed to prove the allegations
set forth therein. We thus find no merit to Appellant’s
first sufficiency challenge.
¶ 23 Likewise without merit are Appellant’s
sufficiency claims based on: others in his home, to wit,
his aunt, brother, and friend all having equal access to
the computer; no direct evidence that he ever viewed the
materials at issue; no direct evidence that Appellant had
been the one to subscribe and pay for internet service; and
no direct evidence that Appellant was the one to have
visited the pornographic websites from where the twelve
videos were obtained and paid for the videos. Each argument
implicates the jury’s factual determinations, and, as we
note above, it is the province of the jury to pass on the
weight to be accorded evidence and to assess the
credibility of witnesses. See Davidson, supra. Here, the
jury clearly disbelieved defense theories on Appellant’s
access to and activities on the computer in question, and
there exists no reason to disturb the jury’s determination
on appeal.
¶ 24 Nevertheless, it is clear that sufficient
evidence existed to support the jury’s determination. The
Commonwealth established, inter alia, that the computer
bore a screen name, systems properties name, and a software
registration name all referring in some respect to
Appellant’s proper name. Furthermore, the Commonwealth
established that 12 of the 14 video clips in question were
downloaded onto his computer in the early morning before
Appellant’s work hours began, and the other two videos were
downloaded at nearly midnight, after Appellant’s work
hours. The totality of the circumstances presented at trial
thus permitted the jury to infer Appellant’s ownership,
use, and ability to access the materials at issue such that
it was he, and no one else in his aunt’s home, who
possessed the child pornography at issue.
¶ 25 Appellant’s final sufficiency challenge is that
the two video clips in counts 18 and 19, respectively,
depicted persons who were not proven beyond a reasonable
doubt to be under the age of 18. Without either direct
evidence or expert opinion as to age, Appellant argues, the
jury was not capable of determining the age of the
purportedly post-pubescent females.
¶ 26 There appears nothing in the certified record
before us, however, to compel reversal of the court’s
ruling to admit video clips 18 and 19 for the jury’s
review. As we thoroughly explained in Commonwealth v.
Robertson-Dewar, 829 A.2d 1207, 1212-1214 (Pa.Super. 2003),
“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.” Id. at 1212.
Section 6312 does not mandate expert testimony on age, as
it permits a case-by-case process whereby the trier of fact
may be able to decide the element of age based on the
outward physical appearance of an alleged minor. Id. at
1213. However, where the alleged minor is post-puberty but
appears quite young, expert testimony may well be necessary
to assist the trier of fact as to age. Id. (citation
omitted).
¶ 27 The problem we face in reviewing this challenge
is that Appellant fails to direct us to where in the trial
transcript the element of age regarding video clips 18 and
19 was discussed, or where Appellant objected to the
admission of the video clips without expert opinion on age.
The only citation to the record offered by Appellant shows
that the videos were admitted into evidence and played for
the jury without objection. It appears, therefore, that
Appellant has failed to preserve this issue with a timely
and specific objection as required under Pa.R.A.P. 302.
Even if Appellant claimed to have preserved this issue
elsewhere in the record, his lack of citation to that
portion of the record has impeded our review and violates
Pa.R.A.P. 2117(a)(4) and 2119, as it is not this Court’s
duty to become an advocate for an appellant and comb
through the record to assure the absence of trial court
error. See Commonwealth v. Hakala, 900 A.2d 404, 407
(Pa.Super. 2006).
¶ 28 Nevertheless, we have undertaken an examination
of the trial transcript and have found no defense motion or
objection with respect to video clips 18 and 19 other than
one invoking Pa.R.E. 404B for unfair prejudice with respect
to the titles and content of each video. The court
overruled this objection and ruled the videos admissible.
N.T. 7/18/05 at 35-37. In any event, even if we were to
address Appellant’s claim that the depicted females were of
a post-pubescent appearance requiring expert opinion to
establish the element of age, the record provides
inadequate information to support this claim. Our review
yields only a discussion, out of the jury’s presence, where
the trial court and the prosecution referred to the females
as “juveniles,” “young juveniles,” or “young naked females”
without any indication that their physical appearance
created doubt about the element of age. See N.T. 7/18/05 at
35-37. Indeed, nowhere in this discussion does Appellant
challenge the court’s and prosecution’s descriptors or argue
against admission in the absence of expert opinion.
Accordingly, under the record before us, we conclude that
element of age in video clips 18 and 19 was appropriately
decided by the jury.
? 29 Finally, Appellant argues that the imposition
of 14 consecutive sentences created an illegal sentence,
violating his constitutional right to be free from double
jeopardy[fn3] where, under the plain language of Section
6312(d), he committed but a single possessory offense
warranting a single sentence. We disagree.
¶ 30 Section 6312(d), supra, criminalizes possession
of a variety of materials — such as books,
pamphlets, magazines, computer depiction, etc. —
depicting a child engaged in or simulating a prohibited
sexual act. Appellant asserts, therefore, that sentencing
under Section 6312(d) must track possession of the medium
itself and not the number of depictions contained in the
medium. So, Appellant reasons, possession of one book of
offending depictions would constitute one possessory
offense, even if the book contained thousands of offending
depictions. The same would hold true for pamphlets and
magazines, presumably.
¶ 31 Assuming arguendo that Appellant is correct
with respect to possession of books, magazines, and
pamphlets, this does not change the fact that the statute
expressly criminalizes the possession of “any . . .
computer depiction,” not the possession of any computer
hard-drive containing such depictions. Here, the record
established that Appellant obtained each of the 14 video
clips individually, at separate times, such that he
possessed 14 separate computer depictions. It was thus
appropriate under Section 6312(d) to charge, convict, and
sentence Appellant separately for each act of possessing
each video clip, i.e., each medium, of child pornography.
Under Section 6312(d) and given the separate acts of
possession occurring in this case, merger doctrine is
inapplicable.[fn4] See Commonwealth v. Gatling, 570 Pa. 34,
___, 807 A.2d 890, 897 (2002) (holding, in this context,
that the court’s interest “is to avoid giving criminals a
‘volume discount’ on crime.”).
¶ 32 For all the foregoing reasons we affirm the
judgment of sentence entered below.
¶ 33 Judgment of sentence is affirmed.
¶ 34 MUSMANNO, J. CONCURS IN RESULT.
[fn2] The Criminal information lists the following names and
ages of the female victims: Count 2- “Dina” age 12;
Count 4- “Katya” age 11; Count 5- “Katya2”
age 12; Count 6- “Ludmilla” age 11; Count 7-
“Masha” age 11; Count 8- “Nadya” age 12; Count 9-
“Nastaya” age 11; Count 10- “Tamara” age
12; Count 11- “Tina” age 11; Count 13-
“Valya2” age 12; Count 14- “Vika” age 14; and Count
15- “Zoya” age 11.
[fn3] These video clips were set forth in the Criminal
Information as [] the basis for Counts 18 and 19. Further,
testimony at trial revealed the titles of these video clips
to be “Teens Pee on Each Other” and “Vibrator Girl”,
respectively.
[fn4] As previously noted, Appellant was originally charged
with nineteen (19) counts [under Section 6312(d)]. However,
prior to trial, the Commonwealth moved to nolle pros five
(5) counts, and [the trial court] granted nolle pros of
Counts 1, 3, 16, & 17.
[fn1] The twelve video clips were the subject of counts 2,
4, 5, 6, 7, 8, 9, 10, 11, 13, 14, and 15.
[fn2] In Commonwealth v. Diodoro, 2006 Pa. Super. 3555 at
*2, *5, *10, *18 (Pa.Super. November 2, 2006), this Court
held that that absent evidence that the defendant knowingly
downloaded or saved pornographic images to his hard drive,
or knew that the web browser cached the images, he could
not be criminally liable under Section 6312(d) for merely
viewing the images on his computer screen. Here, Appellant
does not dispute that intentionally downloading the video
clips or storing the video clips in an accessible space
such as the “recycler” constitutes possession proscribed
under Section 6312(d). His claim, rather, is that whatever
alleged possession may have occurred through such
intentional downloading and storing in the “recycler” ended
before the timeframe contemplated in the criminal
information.
[fn3] For purposes of double jeopardy, the preliminary
question is whether the facts on which the offenses are
charged constitute one solitary criminal act. If the
offenses stem from different criminal acts, there is no
double jeopardy concern and merger analysis is not
required. Davidson, 860 A.2d at 583.
[fn4] On March 15, 2005, The Pennsylvania Supreme Court
granted a petition for allowance of appeal from our
decision in Davidson, supra, limited to answering the
questions:
Whether 18 Pa.C.S. § 6312(d) is unconstitutionally
vague and overbroad?
Did the General Assembly intend that a person charged
under 18 Pa.C.S. § 6312(d) be subjected to
individual counts for each piece of child pornography
possessed?
If the General Assembly so intended, is it constitutional
to impose separate punishments for each convictions?
Commonwealth v. Davidson, 582 Pa. 356, 871 A.2d 185 (2005).
In Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa.Super.
2006), we found our prior decision in Davidson binding as
our high court has done no more than grant an appeal as to
the constitutionality of Section 6312(d). As the
Pennsylvania Supreme Court has yet to issue a decision in
Davidson regarding the constitutionality of Section 6312(d),
we too deem this Court’s prior decision in Davidson, that
Section 6312(d) is neither overbroad nor vague, binding.