Com. v. Hartsock (memorandum)

Annotate this Case

Download PDF

J-S69005-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. JAY KENNETH HARTSOCK, JR., Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 604 MDA 2012 Appeal from the Judgment of Sentence entered on February 29, 2012 in the Court of Common Pleas of Lycoming County, Criminal Division, No. CP-41-CR-0001328-2009 COMMONWEALTH OF PENNSYLVANIA, Appellee v. JAY KENNETH HARTSOCK, JR., Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 706 MDA 2012 Appeal from the Judgment of Sentence entered on October 7, 2011 in the Court of Common Pleas of Lycoming County, Criminal Division, No. CP-41-CR-0001414-2009 BEFORE: MUSMANNO, BENDER and COLVILLE*, JJ. MEMORANDUM BY MUSMANNO, J.: Filed: March 18, 2013 Jay Kenneth Hartsock, Jr. ( Hartsock ) appeals from the judgment of sentence imposed after he was convicted of twenty-three counts of sexual abuse of children, and one count of criminal use of a communication facility.1 1 18 Pa.C.S.A. §§ 6312(d), 7512. *Retired Senior Judge assigned to the Superior Court. J-S69005-12 In a consolidated case, he appeals from his conviction of failure to comply with the registration requirements of sexual offenders.2 We vacate the judgment of sentence of one count of sexual abuse of children and affirm the other judgments of sentence. The pertinent facts of this case are set forth in the trial court s Opinion, which we adopt for the purpose of this appeal. See Trial Court Opinion, 7/3/12, at 1-3. Hartsock raises the following issues on appeal: 1. Whether the [trial] court erred in denying the request for acquittal during trial and post sentence motions which stated that the evidence was insufficient for conviction[?] 2. Whether the verdict issued was against the weight of the evidence since the credibility of the lead witness was in question[?] 3. Whether the [trial] court erred in failing to grant a continuance for an expert witness to be able to testify on behalf of the defense and erred in failing to grant a mistrial after a witness referenced probation officers in connection with the defendant[?] 4. Whether the [trial] court issued a sentence that was manifestly excessive and contrary to the fundamental norms underlying the sentencing process[?] 5. Whether the [trial] court erred in determining [Hartsock] to be a sexually violent predator [ SVP ] due to the lack of communication with [Hartsock] about the circumstances of prior offenses[?] Brief for Appellant at 5. 18 Pa.C.S.A. § 4915. We note that Hartsock has raised no issues in his appellate brief related to this conviction. See Brief for Appellant at 5. 2 -2- J-S69005-12 Hartsock first contends that the evidence was insufficient to support his convictions of sexual abuse of children. He asserts that the identity of the person who viewed the pornographic images was not proved beyond a reasonable doubt because all of the images were found in the Guest account on Ila Mae Newton s ( Newton ) computer. Hartsock also contends that the evidence did not support his conviction of the twenty-third count of sexual abuse of children because the expert was unable to tell if the female in the image was under the age of 18. Our standard of review of a challenge to the sufficiency of the evidence is as follows: When evaluating a sufficiency claim, our standard is whether, viewing all the evidence and reasonable inferences in the light most favorable to the Commonwealth, the factfinder reasonably could have determined that each element of the crime was established beyond a reasonable doubt. This Court considers all the evidence admitted, without regard to any claim that some of the evidence was wrongly allowed. We do not weigh the evidence or make credibility determinations. Moreover, any doubts concerning a defendant s guilt were to be resolved by the factfinder unless the evidence was so weak and inconclusive that no probability of fact could be drawn from that evidence. Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010). The charge of sexual abuse of children of which Hartsock was convicted is defined as follows: (d) Child pornography.-- -3- J-S69005-12 (1) 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(d)(1). The act of accessing and viewing child pornography over the internet constitutes control of such pornography pursuant to 18 Pa.C.S.A. § 6312. Commonwealth v. Diodoro, 932 A.2d 172, 175 (Pa. Super. 2007). In the instant case, Dr. Pat Bruno ( Bruno ), a pediatrician, testified on behalf of the Commonwealth as an expert in child abuse, including physical, sexual, and emotional abuse. N.T., 4/12/11, at 96. Dr. Bruno testified that he had been trained to use Tanner Staging, in which physical and sexual characteristics are examined to determine the age of a child. Id. at 97. The prosecutor showed Dr. Bruno each of the pornographic images taken from Newton s computer, and Dr. Bruno gave his estimate of the age of the individuals depicted therein. Id. at 98-104. Dr. Bruno testified, within a reasonable degree of medical certainty, that each photograph, except for the last one, depicted a child between the ages of 11-14. Id. For the last image, Dr. Bruno testified that he could not determine the age of the female depicted therein. Id. at 104. Dr. Bruno gave no opinion as to the age of the female in that photograph. Id. Agent Ronald Bachman ( Bachman ) of the Williamsport Bureau of Police testified that he had retrieved the photographs that were shown to Dr. -4- J-S69005-12 Bruno at trial from the computer seized from Newton s residence. 120. Id. at The record shows that Agent Bachman seized twenty-three images from that computer. See id. at 122-33. The record shows that Dr. Bruno was unable to conclude that the last of the photographs shown to him included a depiction of a minor child under the age of 18. See id. at 104. Therefore, the evidence was insufficient, for that reason, to support one of Hartsock s twenty-three convictions of sexual abuse of children. Accordingly, we vacate Hartsock s conviction and sentence at Count twenty-three, the last charge of sexual abuse of children against Hartsock. We note that the trial court s sentences for counts six through twentythree of sexual abuse of children were imposed to run concurrently with each other and concurrent with the sentences imposed at Counts 1 through 5. Therefore, we conclude that it is unnecessary to remand for re- sentencing with regard to this conviction. See Commonwealth v. Lomax, 8 A.3d 1264, 1268-69 (Pa. Super. 2010) (holding that, when this Court can vacate a sentence without disturbing the overall sentencing scheme, there is no need to remand for re-sentencing). With regard to Hartsock s issue of whether the Commonwealth established that he was the person who had accessed the child pornography images, the record shows that Agent Bachman testified that he did a full forensic examination on the computer seized from Newton s home on August -5- J-S69005-12 17, 2009, and obtained from the computer the images that Dr. Bruno had identified as child pornography. N.T., 4/12/11, at 120. All of the child pornography images were accessed on June 18, 2009. Id. at 123-33. Bachman further testified that, by investigating the internet history on Newton s computer, he was able to obtain information that implicated someone. Id. at 134. Bachman testified that none of the photos of child pornography that were shown to the jury in this case came from the Ila account. N.T., 4/13/11, at 10. Bachman stated that all of those child pornography photos came from the guest account. Id.; see also N.T., 4/12/11, at 123. Bachman further testified that, when he conducted a search of the internet history, it revealed that a fling account was accessed from the guest account on June 1, 2009. N.T., 4/13/11, at 11, 15. Upon further investigation, Bachman located a fling account with the name of GentleJay007, which included a photo of Hartsock. Id. at 16. Bachman further testified that, during his search of the computer s internet history, he did not locate a fling account for Newton. Id. at 11. The above testimony connected Hartsock to the guest account, from which the child pornography images at issue were taken. We conclude that the Commonwealth proffered sufficient evidence establishing Hartsock s identity as the person who viewed the child pornography images on Newton s computer. -6- J-S69005-12 Next, Hartsock contends that the verdict was against the weight of the evidence. Hartsock alleges that Newton was not a credible witness, and that her testimony and that of Agent Bachman demonstrated that it was just as likely that Newton viewed the child pornography images as did Hartsock. Our standard of review of a weight of the evidence claim is as follows: The finder of fact is the exclusive judge of the weight of the evidence as the fact finder is free to believe all, part, or none of the evidence presented and determines the credibility of the witnesses. As an appellate court, we cannot substitute our judgment for that of the finder of fact. Therefore, we will reverse a jury s verdict and grant a new trial only where the verdict is so contrary to the evidence as to shock one s sense of justice. Our appellate courts have repeatedly emphasized that [o]ne of the least assailable reasons for granting or denying a new trial is the lower court s conviction that the verdict was or was not against the weight of the evidence. Furthermore, 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. Rabold, 920 A.2d 857, 860-61 (Pa. Super. 2007) (citations omitted). Here, the trial court denied Hartsock s post-sentence Motion raising a challenge to the weight of the evidence. See Trial Court Opinion, 7/3/12, at 11-12. After reviewing the record, we conclude that the trial court did not -7- J-S69005-12 abuse its discretion in denying Hartsock s post-sentence Motion with regard to this issue, and we adopt the trial court s Opinion as to this claim. See id. We add the following. Hartsock argues that Agent Bachman s testimony, i.e., that the website Teeniesxxx.com depicted young girls naked and was viewed on August 5, 2009, demonstrated that it was Newton who had viewed the child pornography images. Brief for Appellant at 15-16; see also N.T., 4/12/11, at 156. This argument ignores Agent Bachman s later testimony stating that, when he used the term young girls, he was referring to young girls, over 18 and up. N.T., 4/13/11, at 9. Agent Bachman further testified that the above-mentioned website did not contain child pornography involving children under the age of 18. Id. at 9-10. Agent Bachman stated that he viewed items of an adult sexual nature in the Ila account, but did not view any images of an illegal nature, or involving child pornography, on the Ila account. Id. at 10. We also find no merit, based on our review of the record, to Hartsock s claim that the evidence did not substantially show that the time shown on the images was correct ¦. Brief for Appellant at 16. Thus, we conclude that Hartsock is not entitled to relief on his argument that the verdict was against the weight of the evidence. Next, Hartsock contends that the trial court erred by failing to grant a continuance in order to allow the defense expert to testify. Hartsock did not raise this claim in his Rule 1925(b) Concise Statement. Therefore, Hartsock -8- J-S69005-12 has waived this claim. See Commonwealth v. Fulton, 921 A.2d 1239, 1243 (Pa. Super. 2007) (holding that issues not included in an appellant s Rule 1925(b) concise statement are waived for purposes of appeal).3 Hartsock also contends that the trial court erred in failing to grant a mistrial when evidence was presented regarding a probation officer coming to Newton s house. Again, Hartsock did not raise this claim in his Rule 1925(b) Concise Statement. Therefore, Hartsock has waived this claim. See Fulton, 921 A.2d at 1243.4 Next, Hartsock contends that the sentence imposed was excessive and contrary to the fundamental norms underlying the sentencing process. Hartsock s claim challenges the discretionary aspects of his sentence. There is no automatic right to appeal from the discretionary aspects of a sentence. Commonwealth v. Mastromarino, 2 A.3d 581, 585-86 (Pa. Super. 2010). To reach the merits of a discretionary sentencing issue, we conduct a four-part analysis to determine: (1) whether appellant filed a timely notice of appeal, Pa.R.A.P. 902, 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, 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[.] Even if the claim was properly preserved, we conclude that the trial court properly addressed this claim. See Trial Court Opinion, 7/3/12, at 8-9; see also N.T., 4/8/11, at 11-21. 3 Even if this claim was properly preserved, we conclude that the trial court properly addressed this claim. See Trial Court Opinion, 7/3/12, at 9-11. 4 -9- J-S69005-12 A substantial question will be found where an appellant advances a colorable argument that the sentence imposed is either inconsistent with a specific provision of the Sentencing Code or is contrary to the fundamental norms which underlie the sentencing process. At a minimum, the Rule 2119(f) statement must articulate what particular provision of the code is violated, what fundamental norms the sentence violates, and the manner in which it violates that norm. Id. (citations omitted). In the instant case, Hartsock has fulfilled the first three requirements with regard to his discretionary aspects of sentencing claim. However, Hartsock s Rule 2119(f) statement does not articulate what particular provision of the code [was] violated, what fundamental norms the sentence violates, [or] the manner in which Mastromarino, 2 A.3d at 585-86. it violates that norm. See Therefore, Hartsock is not entitled to further review of his discretionary aspects of sentencing claim. See Commonwealth v. Trippett, 932 A.2d 188, 202-03 (Pa. Super. 2007) (holding that, where an appellant, in his Rule 2119(f) statement, merely states that his sentence is excessive, and does not set forth the specific provision of the Sentencing Code or the fundamental norm that was violated, the appellant has failed to raise a substantial question that his sentence was excessive and is not entitled to review of the discretionary aspects of his sentence).5 Moreover, we find no abuse of discretion in the trial court s ruling on this issue. See Trial Court Opinion, 7/3/12, at 12-14. 5 - 10 - J-S69005-12 Next, Hartsock contends that the trial court erred in determining that he was an SVP. Hartsock argues that the Commonwealth s expert in this area, C. Townsend Velkoff ( Velkoff ), conducted his assessment without meeting with Hartsock. On this basis, he contends that the trial court erred in determining that he was an SVP. On appeal from an SVP determination, [t]he appellate task requires construing the evidence in the light most favorable to the party which prevailed before the factfinder ¦. Commonwealth v. Meals, 912 A.2d 213, 222-23 (Pa. 2006). The task of the Superior Court is one of review, and not of weighing and assessing evidence in the first instance. Id. In the instant case, Velkoff testified that Hartsock was given an opportunity to participate in the evaluation, but he did not participate. N.T., 10/7/11, at 5-6. Thus, Hartsock s claim that the assessment is invalid because Velkoff did not interview him is disingenuous and lacks merit. Further, the record supports the trial court s conclusion that Hartsock is an SVP. We adopt the trial court s well-reasoned Opinion with regard to this issue. See Trial Court Opinion, 7/3/12, at 14-17. Judgment of sentence vacated as to one count of sexual abuse of children in accordance with this Memorandum; judgment of sentence as to all other convictions affirmed. - 11 -

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.