Com. v. Delorge, K. (memorandum)
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J-S79022-18 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA v. KRISTIN DELORGE Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 937 MDA 2018 Appeal from the Judgment of Sentence February 20, 2018 In the Court of Common Pleas of Schuylkill County Criminal Division at No(s): CP-54-CR-0000915-2016 BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J. MEMORANDUM BY OLSON, J.: FILED FEBRUARY 05, 2019 Appellant, Kristin Delorge, appeals from the judgment of sentence entered on February 20, 2018 in the Criminal Division of the Court of Common Pleas of Schuylkill County. We affirm. The opinion of the trial court filed on May 11, 2018 sets forth the factual and procedural history of this case. See Trial Court Opinion, 5/11/18, at 1-12. We adopt that recitation of the facts and shall not repeat those facts herein. At the conclusion of trial on November 1, 2017, a jury found Appellant guilty of ten counts each of sexual abuse of children - disseminating depictions of prohibited acts (18 Pa.C.S.A. § 6312(c)) and sexual abuse of children – possessing material depicting prohibited acts (18 Pa.C.S.A. § 6312(d)). The jury also found Appellant guilty of one count of criminal use of a communication facility (18 Pa.C.S.A. § 7312(a)). On February 20, 2018, J-S79022-18 the trial court sentenced Appellant to an aggregate term of 18 to 36 months’ incarceration followed by ten years’ probation.1 After the trial court denied Appellant’s post-sentence motions on May 11, 2018, Appellant filed a timely notice of appeal on June 8, 2018. The court then directed Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied on July 3, 2018 and the trial court issued its Rule 1925(a) opinion on July 6, 2018. On appeal, Appellant challenges the sufficiency of the evidence offered in support of his child pornography convictions, as well as his conviction for the criminal use of a communication facility. In particular, Appellant claims that a single download of child pornography is insufficient to demonstrate a knowing or intentional violation of 18 Pa.C.S.A. § 6312(c). Similarly, Appellant maintains that the evidence is insufficient to show that he intentionally viewed or knowingly possessed child pornography in violation of 18 Pa.C.S.A. § 6312(d). Appellant concludes that because the evidence is insufficient to prove that he violated §§ 6312(c) and 6312(d), the evidence is equally insufficient to show a criminal use of a communication facility in violation of 18 Pa.C.S.A. § 7312(a). We have carefully reviewed the certified record, the submissions of the parties, and the thorough opinion issued by the trial court in denying ____________________________________________ At trial, Appellant was also convicted of several drug-related offenses for which the trial court imposed concurrent punishments. Appellant’s drug offenses are not challenged on appeal. 1 -2- J-S79022-18 Appellant’s post-sentence motions on May 11, 2018. Based upon our review, we are satisfied that the evidence adduced at trial was sufficient to establish each element of Appellant’s offenses beyond a reasonable doubt. Because the trial court’s opinion adequately and accurately addresses the claims Appellant presents on appeal, we adopt the trial court’s May 11, 2018 opinion as our own. The parties are hereafter directed to include a copy of the trial court’s May 11, 2018 opinion with all future filings pertaining to our disposition of this appeal. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 02/05/2019 -3- Circulated 01/25/2019 10:36 AM COURT OF COMMON PLEAS 0.F SCHUYLKILL C.OUNTY-·CRIJ'illJNAL DIVISION No ..915.-16 .COMMONWEAL TH OF PENNSYLVANIA vs. KRiS.TIN DfLORGE, . Defendant Pfstrict Attorney's Qffice - for the Qommonweafth · Frank R. Cori, Esquire -fer Defendant DECISION RUSSELL. J. On February 18; 2018, Defendant Kristin Delorge filed a motion for post-trial relief contending that the evidence elicited at his October 31 - November 1, 2017 jury trial wa.s insufficient to supportguilty verdicts against him on ten counts each of sexual abuseof children by disserninatinq depictions of prohibited sexual acts (18 Pa;C.S. 6312(c) }. and by possessing rnaterialdepictmq such acts (18 Pa.C.S, 6312(d) ), and on one count of cnminal use of comrnunioationfacility (18 Pa.C.S. 7.312(a) ). Defendant had also be.en found guilty of one count of possession With intent to. deliver a controlled substance - marijuana (35.. P.S.. 780 113(a)(30} ). two counts of possession of a controlled substance rnariiuana and methamphetamine (,35 P.S.. 780-113(a}(16)) and one count ofpossession pf drug paraphernalia .(3.5 P .s. 7BQ--113(a.)(32) ). Defendant does not contest the sufficiency of the evidence oh the controlled .substance/paraphernalta verdicts. Defendant was sentenced dil February 20, 2018 to serve 3 to 12 months' inc:.arceratJon on Count 1 - possession With intent to deliver: 18 to 36 months' incarceration followed by 5 yeats' probation on Count 2 - dissemination of child 1 Exhibit B - Page 1 pornography; and, concurrent terms ofincarceration of 18 to 36 rnonths or of 12 to 24 months on the balance ofthe dissemination offenses (CO.LJ.lits 3 -1 j_).1 Sentences were not.irnposed on the possession of child pornography offenses (Counts JR..::.2JJ which were found to merge for sentencing purposes. Defendant was sentenced to serve 5 years' prebation. en Count. 2.2 - criminal use of communication facility- to run consecutive to the sentence on Count.2. Finally, Defendant was sentenced to serve terms of incarceration of 1 to 12 months on both Gounts.24 and 25 - offenses of possession of metharnphetamirie and drugparaphernalta. respectively. The second count of possession ofa controlled .substance (rnarquana) (Count 2 ) was found to merge for sentencing purposes. With the exception of the censecutivesentence of probation on Count 22. all sentences imposed were to run concurrently with that imposed on. Count 1 =possession with intent to.celiver a controlled substance (marijuana). Defendantwas directed to file a brief in support of his motion setting forth the basis for his claim that the evidence had been insufficient case on or before March 12,.201 a. to prove the Commonwealth's In his March 141 2018 brief, Defendant arques that the evidencewas insufficient to. prove thathe had disseminated any depiction or that he had knowingly possessed the depictions. Further. Defendant raises the additional clann that the Commonwealth's evidence was against the weig·ht of the evidence.. 15. 2018 · the C cmmonweatth asked for addition al time to file ---- ··- ..-.,. Ori March a responsive brief ..,. 1 · All child por-r.qgrapl,y counts .ha.d been graded accordtnq to whether the depictions at. issue. exnlb\!ed inoecent.contact.witha child defined 10 18 Pa.C.S, 3.101. Per 18 Pa.C'.S 3t01, indecent.centactis ··[a.Jny touching of th.e sexual orother .intimate parts of the person for the purpose of 9rOU$ihg or gratifying sexual desire, in any person." in accordance vJith'l8 Pa.C.S. 63T2(d;1)(3); offenses involving depictions otindecent contact shall be classified one grace higher than those without such con tac: depicted: The longer terms .of imprisonment were. imposed on the. higher graded offenses. as 2 __________ __;._ ................. Exhibit B-Page2 ----- ···--·····------·---- -· ---- -----,..._ -··--- ----·---- -.......-··-····----·-·-·----·--.--·----·--··-···-·-·--·-·--·------------ ,, _ _, because the triai prosecutor was no longer with the District Attorney's Office and the current prosecutor needed a transcript of the trial testimony, which had then been ordered but not prepared, to .address Defendant's arguments. The Court granted the motion. The Commonwealth subsequently flied its responsive brief. The Crimes Code defines the offenses and elements at issue asIojows: Sexual abuse of childre.ri {c) Dissemination of photographs, videotapes, computer depictions and filrns.s-Any person vi/ho knowingly sells . . qistfrbut s. delivers .. dlsserninates, transfers, displays or exhibits to others, or who possesses for the purpose .of sale, distribution, delivery, dissemination, transfer. display exhibitiontc others. any book. magazine, pamphlet .. .stice. photograph; filr.n, videotape, computer depiction or other material depicting a chiid under the age of 18 years engaging in a prohibited: sexual act or in the simulation of such act commits an offense. {d) Child pernoqraphy=-Any person who intentionally views cir knowingly possesses or controls any book, magazine, pamphlet. slide, photograph, film. vrdeot pe. computer .ceprofton or other material depicting. a child under the age of 18 years engaging in a prohibited sexual act or in the simutauon of such actcommits an offense. 18 Pa.C.S. 6312{c}.(d). Criminal Use or Communication Faci!l!Y (a} Offense defined.v-A person commits .a felony of the. 3. Exhibit B- Page 3 ·---......._.,..... ,_.. _ . ....-. .-········-----------·---------------------_, ·---· ·-·····----.-... - third degree if that person uses a communicatiorr tacihty to cornrnit, cause or facilitate the commission or the attempt thereof of any crime which constitutes a felony under this title or under the. act of April 14,. · 1972 (P.L. 233. No.. 64), known as The C-ontrolled Substance., Drug, Device and Cosmetic Act. Every instance where the. communication facility is utilized constitutes a separate offense Under this. section. (c) Definitron. -As used in this section. the term "cornrnunication facil'it{ means a public or private instrumentality used or useful in the transmission of signs. signals, writing. images; sounds, data or intelligence of any nature transmitted in whole or in part. including, but not limite.d to, telephone, Wire, radio. electromagnetic, photoelectronic or photooptical systems the mail. or 18 Pa . .C.S. 7'512(a).(c). General requirements.of Culpability (a} Minimum require merits of cµlpability. Excepf as provided in section 305 o.f this title (relating to limitations on scope pf culpability requirements}; a person is. not guilty of'an offense unless he acted intentionally, knoyvingfy; recklessly or negligently, as the law may require, with respect to e.ach material. element of the offense. (b) .Kinds ofculpability defined.-(1)A person acts intentionally with respectto a material element of an offense when: (i) if the element,nvolves the nature of his conduct or a resultthereof it is his conscious object to engage in conduct of that nature or to cause such result; ahd a 4 Exhibit B - Page 4 · ·········"-----·--··-·------·-------------------- (ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he betieves or hopes that they exist. (2} A person acts knowingly with respect to amateriai element of an offense when: (i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature circumstances exist: and or that sL1d1 (ii)if the element involves a result of liis conduct. he is aware that it is pra.ctically certain that his conduct will cause such a result. · . .. . 18_Pa .. C,_§. 302(aL@.: Trial Evidence In his brief. Defendant argues that the charqes.aqainst him resulted from a Pennsylvania State P6Hce investigation $urveilling the. internet which for Qhild oornoqraphy found th atone. file containing twenty images of chifd pornography had been downloaded to an internet protocol address .traced to Defendant. Defendant claims that no evidence exists that the images had been viewed or forwarded other evidence of pornography had been found on by him and that no Defendant's computers. (Oef ndanrs post.:.trial brief, pg. 2). Further. Defendant claims that the Commonwealth's only evidence indicates thatthe file In question had been downloaded to a networkwhich others could access and the only known person who had viewed it .5 Exhibit B - Page 5 ..-, ------·---·--- ------------------------· wasthe irivestiga.ting state police officer. A review of the relevant evidence follows to place the issues as argued by Qe.fendant in context . . At trial, the Commonwealth presented testimony .on the child porncqraphy aspect of the case from Permsytvanla State Police Corporal John Powis who had been present and ihtervievved Defendant on March 8, 2016 during the police search of Defendant's home when various electronic devices were confiscated from inside the home. Additionally, the Corntnonwealtb called Pennsylvania State Police Sergeant Jphn o·NeiJJ. Supervisor of the Computer Crime Unit and Bureau of lnvestigatio.n; Goodyear. retired Pennsylvania State Police Corporal last Gerhard assigned to the Computer Crime Unit: Robert Krehling, Pennsylvania State Potice digital forenstcexaminer: together with Defendant's teenage son. Defendant testified in his .own defense. Gerhard Goodyear, since. retired, was a Pennsylvania State Police Computer Crime Unit undercover investigator of possession and distribution of child pornography offenses. Goodyear provided de.tailed evidence to the jury about the use and operation of computers. His approximate four hundred police investigations involved file sharing or peer-to-peer networks by which two or more· computers on the. samenetwork share files with alt.other persons utilizing.compvter.s on that network. Various reasons.exist for a computer user to desire to utilize. a file sharing network, including the avallabillty pf material and efficiency afforded a user in. retrieving desired material' on tl:,e internet Goodyear explained that if a person Wants to be part of a file sharing network child pontogra:phy, he has to search t.he internet for a specific program that.allows him Exhibit B - Page 6 ---·-·-·-····· . ··--·-··-··-·-··-·-···..-·...--....---·-··--- ····-·····--··-.. ····---.. -·-·..··-..-----·····-.. to obtain · ·----------------------------- to join p peer-to-peer network, After finding and selecting the desired proaram, the user must download it and install it on his computer. Next, he must set the proper configuration on nls computerto make the program function for the network he desires to join. Thereafter; he must conduct searches on the computer to find those pornographic files in which he is interested. He would .do so by typing and entering a search. term in the search window that appearson his computer screen. Upon receiving a Hst of files in response to the search term he entered he would then select the file or .e files that he desires to receive and review and then .cJo.wnload those fries onto his computer. Specific search terms for child pornography are trequentty used to locate tiles ¢.orifaining that contentby those interested in. doii1g so, incltJding "PTHC" {pre-teen rratd core) and ''PTSC'' (pi'e-teeri soft core). If such terms aretypeo on generally used sites by computer users - for example, a Google site - messages will appear vJarhing the users "Get Help!" that chjlo pornoqraphv is a crime. However, such material is accessible. by other means. According to Goodyear; mostftle sharing programs are specific to one network. However, Shareaza - the program Defendant utilized - .is unique in that it is a specific program thatatlows a user to search several networks at the same time .. Shareaza has a "setup wizard" for a user to follow to install that program which includes various setup screens with questions thatmust be answered by the user; including whether he wants to .share fileswith others using the peer-to-peer network. After the program is installed by the user. a. window wHI appear on the user's computer to allow the user to enter a search term, When the search term is typed on .the. screen by the user, he musthit 7 Exhibit B - Page 7 "enter" to continue the search. Names of files matching the search term would then be displayed on the user's computer screen. If the user finds a file he desires he must hit "oownloac" to receive it on his computer. to retrieve, If the user places rnateriat that he downloads into shared is . then available from his . . . . . files . tnatrnateriaf . . . .. . .. to .be retrieved . . . . computer by other users of the peer-to-peer network. DLiring his investigation, Goqdyear utilized .the etli1ul.e network. Police do not share fil s on that.network but simply use itto search the internettor known files that have been previously identifiedas child pornography-related. Po!lce use th.e unique hash values of those known files.to identlfy ccmputets that are sh ;Hing c.hdd p9mo.graphy .and then d.own10130 the files retrieved from those users' computers vta an automatedprocess to the police computer.. The software police use conducts only ;•stngre source downloads" so that all parts. of each download are retrieved from. one. user· source rather than from multiple users who are using the peer-to-peer networx. Police can thereby be assured that an t;ntire file which they find ahd do\-v.hload came from one particular computer: Herein. on December 20, 2015, the potice investiqative computer located antj then downloaded suspected files of child pornography which Goodyear reviewed. He dete rnined the IP address of the computer from Which the suspected pornography had been transferred and found that the service provider for the user of that computer was Frontier Communication.. Then he obtained a court order to retrieve information from Frontier Communlcatlonto identify the subscriber of the service as of the date: and fin1e· that the child pornography had been received from that computer l:).y police. Frontier Communication indicated that tile subaoriber wae DefendantKristin Delorge of 131 8' . Exhibit B- Page 8 ·--.-------, _ ..__ , ..__ --···--····-·-- -·-···-, .,- . Breisch Road. Ringtown. According to Goodyear, a computer utilized. under Defendant's Frontier Communication subscription had been turned "on" and the Shareaza program had been running on that computer suspected pornographic material from at th time ponce received the iL Goodyear originaliy·dbWriloadedtwenty irnaqes of suspected child pornog.raphy lo start his investigation. Atterthe search Of Defendant's home; Goo.dyearwas provided ten files recovered by pouce from one of Defendant's computers. The computer was located on a. shelf in what was determined to be Defendant's bedroom. One file recovered frorrrDelendanf s computer matcrrsd a file Goodyear downloaded during his i n iii al investigation. Robert KrehlJng is a digitaJ forensic: examiner of electronic storage devices with the Pennsylvania State Police. He was present in a mobile examination van located outside Defendant's home on Marer. 8,,. 2016 when police searched the home. Pennsylvania State Police $ergeant John O'Neill identified evidence fo1Jn.d at the scene of the search ofDefendant's home, including various electronic devices which were provided to- Krehliilg. While ori site, Kreh ling examined the contents of all electronic devices police.found at the home .. One laptop computer, a Dell latitude, was found to have files .containing suspected images of child,pornography. Eight images file named PTHC Vietnamese Child Brothel and two irnages were were in a from a file named PTS,C Y: Salome. By analyzing the metadata on Defendant's computer, KrehHng determined that the PTHC Vietnamese Child Brothel file had been. created and downloaded onto Defendant's.. computer at 1 :40 a.m. on December 19, 2015. The last access of thePTHG Vietnamese Child Brothel fri'.)age .file had occurred at 1 :4.4 a.rrr. that s ,,_ -- . ----------·-·-··-..·-· _,_,,_,_,,_,_, - ----·-·--, , E hibit B- Page 9 -"·-----.---..-----· -----------·-·-··--·------- _______ ,,_ d;:.iy on Defendant's computer. As recorded in the metadata, the. PTSC Y Salome file was created, dowrtloadsd and 2015 at 12:22 p.rn. accessed ah Defendant's computer on December 19. After the images were dcwnloaded oh Defend ant's computer, they were then offered to be shared with others on the rietwork." Pennsylvania State Police Corporal John Powis was present' when the search warrant was s rved at Defendant's home on March a. 2016. Corporal Powis interviewed Defendant while the search was conducted. by other police. After various illegal drugs and paraphetnalia were located in an upstairs bedroom whlch Defendant indicated .was his . Defendant.told CorporalPowls that all of the items were his for personal use. Defendant a1$0 told Corporal Powis that he had internet service at the home, that Frontier Cornrnunicatlon was the provider and that his router and computer were password protected. Additionally, Detendant stated thathe was aware of file them in thepast. sharing programs and that he had used W.hen Corporal Powis described to Detencant an image and the file name from which the image had been previously downfcaded.by Corporal Goodyear during the latter's investigation - namely, the file ''PTHC Vietnamese Child Brothel" and the image being thatof a prepubescent child about four to five years old appearing completely nude While sitting on and pe rtorm: ng oratsex Oh a nude ad u It male - and asked if Defendant recognized them, Defendant said that he did, that he had seen the i1i1age. on . . his son's laptop in the past but that he did not do anything about it and was not able to tell CorpcralPowiswhy he had not. Defendant did not tell .Corpora/Powis that his son had access to his (Defendant's) computer. When Corporal Powis told Defendant that 2 Ten.of the images found on Def.endanrs computerand exhibited to.the j:vry need net be describeo a$. Defehdam has riot contested their constituting child pornography. 10 Exhibit B - Page l O .., ...,...,,,..... ·····---,,--·--··-·,.----·--- t!1e laptop found in Defendant's bedroom had images of child pornoqraphy on rt, that those. matched the ima.g.es that.had been downloaded i;:,y Goodyear in his lnvestiqafion and that the file sharing program Shareaza was associated with that laptop, Defendant stated that the laptop was his. and thatit it was on his computer, "Ill take responsibility In addition to thelaptop computer located i11 Defendant's bedroom. police found various electronic devices in the home, including a l ptop in anoiherbedrccm together with multiple computer parts and towers. Defendant also told police that he. repaired computers. Defendant's tcurteeo-vear-crd son testified that (December at the time of the downloading 19. 2015}, he would have beentwelve years. old and did not reside with Defendant Wheri he visited his father, the child took his own computer to his father's home to use for gaming and Videos. He had not been familiar with the program Shareaza and had not used file sharing. He further testified that he had not downloaded a vietnarnese Child Brothel file an.d that hehad used Defendant's computer only One time for gaming. Defendant testified in his own defense . According to Defendant he had been employed outside the borne atthe tnne of the incident in addition to havinq performed computer repair work for people at hls home. Defendant stated that he could install computer hardware .and software. Defendant did not remember being asked by Corporal Powis about the internet address of a. child pomoqraphy site but he did r call having heard the description of the porno.gi'aphi·c depiction. Defendant claimed recallfng that his son and his nephew had been at his home the weekend .of the December, 2015 11 ---- Exhibit B - Page 11 -··-- -·--··-·-- ..... ·-- .. --:------··-.---·-· ·---·------·--- downloading and that it was possible that they could have been using his computer, Defendant also stated that when talking to Corpora! Powis. he had taken responsibility for everything in the house but that he had not known that Corporal Powis was referring to child pornography atthe time. Defendqnt .claimed that the subject laptop computer was in his bedroom on a shelf. that it was. "for the kids to play video games and that everyone in his home had 1' access to his computers. Defendant testified that he had been familiar with tue sharirtg prosrams, had used them, was aware that when installing such a program there is an instauaiion rnenu that must be gone through to install it. that he had used Shareaza in the past and that he, was familiar with the interface of the proqrarn. Defendant further testiflec that he knew that when a person downloads flies using a file sharing program thatthose files. would be. "shareable." Defendant also stated that his computer and \Ni. Fi had both been password protected, Discussion In his post-trial brief, Defendant questions both the sufficiency and weight of the trial evidence. A weight of the evidence. challerrqe rnay be preserved by raising the claim .in a motion for new tri .1 orally on the record orln written motion before sentencing or in a post-sentence motion; Pa.R.Grim.P. 607(a}.. Defendant did notraise the weight claim before sentencing or in his post-sentence motion. Although Defendantfirst. mentioned · the issue in his post-sentence brief; the .Court has. evaluated the claim ano finds no mentto the challenge. 12 Exhibit B - Page 12 ...___ --.._ ... -•••,- -·-v-v ... ·--......... _.___,,..,.. , ,---------------------- ,--------·---,--·----- The jury was free to believe all, part or none. of tne trial evidence a·nd determine witness credibillty, In his argument; Defendant does not ttack the credibility ofthe Commonwealth witnesses or the reliability of the evidence they offered. Rather. his argument appears to be thatthe Court should nullify the verdict due to evidence that indicates Defendant had oct accessed the child pornography after December 19, 2015, The Court con:.sidr:;re.ci that evidence when sentencing De.fend ant at the low end of the mitigated range of the sentencing guidelines on the child pornography dissemination charges a rid lmpos fng all of those sentences to n,.i n concurrently with the sentence 01i · the controlled substance felony offense.3 Nevertheless, such consideration does not support finding tha.t the verdict was agair.ist the. w.eight of the evidence as. the verdict was not contrary to the evidence, Comntonweetthv. Gibs m, 720 A.2o 473 (Pa. t998) (courtmay award new tri I in its discretion if verdict so. contrary toevldence as to shock sense orjustice). In evaluating a sufficiency of the evidence challenge, a court is to determine whetherthe proofat tria! and. the reasonable inferences arising therefrom. when viewed in the light most favorable to the verdict; winner- the Commonwealth - support the conviction beyond a reasonable doubt. In a jury trial. if sufficient record evidence exists to have allowed the fact-finder to find every element of the crime at issue establlshed beyond a reasonable doubt, the evidence is sufficient to sustain the verdict. In determining the sufficiency of the evidence. a court is not to re-weigh it as the jury had been free to believe all, some or none of the evidence it heard. The Commonwealth's sufficie.ncy burden maybe met by direct or circumstantial evidence or a combination of 3 The trial evider,ce does not suppot.t Defendant s argume.r,t.ihat no other .pornogfaphy ·'of any klild'' was found on his computers, 13 Exhibit B - Page 13 ....... ·-·· .-··-····-.·---····------··'"'•''-'··---·--·---·······---·. . both. Unless it is found that the evidence received is so inconclusive and weak that no proba.oility pf fact could have been drawn from all the circumstances, doubt as to an accused's guilt must be resolved by the jury. Comn.1g.11wealth v. Rodriquez, 141 A.3d 52.3 .. 525 {Pa. Super. 2016). In his brief, Defendant claims that the Commonwealth's proof failed to establish that Defendant knowingly downloaded depictions of child pornography sc to be convicted of knowingly possessing or controlling a computer depiction of such material in violation of 18 Pa.C,s... .6.312(d). The evidence the.iurv considered included testimony that Defendant installed the file sharin9, proqramSnareaza witb access to multiple networks on hts computer. Not only would one installing such a program be required to go through. an tnstaltation process during which the user is informed of the nature of the. program and of fire sharing but Defendant, a computer repairman, acknow.ledge!:l both to police and while testifyin at trial about his knowledge of-computer operation, of his havinq used fil sharing programs including Bhareaza, and. ofknowihg how they operated .. To download child pornography; a computer user would firstbe required to type terms in a search bar for the kind of material the user was .intending to find_ Files cif child pornography often are located using various known particularized search terms including PTHC and PTSC. After the computer delineates flies that match the search terms th at had been entered, the user would not· have access to or possess the chi id pornography contained in any file until the. user actually selects a file or files. he desires andthen downloads it/them onto his owncornputer. Herein, Defendant's computer. which was password protected. was found on a shelf in his bedroom, Files from chiid 14 Exhibit B - Page 14 -- ---··----· .. ··---- pornography sites we.re found on the computer and ten of the depictions located in two of the files were exhibited to the jury. The jury heard Defendant's son -who Defendant suqqested may be to blame - testify that he used Defendant's computer only one time for gaming and that at the. relevant time he had not beerifamiltar witrr file sharmq, Shareaza or a file named. PTHC vietnarrrese Child Brothel. Defendant also claims that the evid.e.nce was insufficient Jo prove a violation of 18 Pa.C.S. 6312(c) because.tre evidence did net establisf thatthe child pornography had been disseminated from Defendant's IP address sn.d that the only known person.to whom the depictions had been disseminated had been the investigating police officer. However, Commonwealth wrtness.Oerhard Goqdyec1r specifically testified that based upon the program the police utilized in their investigation. he. knew that pcrrroqraphy depictions aU came from the child Defendant's computer IP address. Further. the computer in Defendant's bedroom was the only .devlce in the home which had been confiscated during the police search which had the same irnaqes. fo.und during Goodyear1s initial police investigation. Section 6312(c) prohibits the knowing dissernmatlon of the prohibited material or the possession of such materialfor the purpose of dissemination. Oefenoant understood that the Shareaza program provided for fil sharing of material on one's computerby making it available to other computer userswhowere n.1nning the same prcqrarn. The jury wasfree to believe the evidence of the Commonwealth.along with Defendant's incriminating statements.and testimony in determining whether the computer-savvy Defendant - who installed the file sharing program while wen aware of what such program involved, sought, then downloaded and then placed child pornography in files on rus computer to be shared with others - 15 Exhibit B - Page 15 '· - ·-·---······ ·········-·-·------·-------·-·--- ·----- .... -··- -----·-- ....-...... ...... ,. · -- . · · ·------ ·-·-·-·--·-··-··----..·---···-·- kn.oviingly disseminated or possessed the material for the purpose of disserrnrration In this regard. one acts knowingly if "he is aware that itispartlcularly certain that his conduct will cause such a result" C1.. _ PaJ;.a:. · 3.02(bl ). Defendant further argues that subsection (f).of 18. Pa.C.$.. 6312-4 ofthe Crimes Cede precludes his conviction because the evidence only established that police had i·eceived the child pornoqrapny Jrorn Defendants computer and they were "quatifred" by law to view the material. In relevant part, 18 Pa.C'.S: 6312 ex¢epts ''[a]ny materia! that be brouqh; ihta this is viewed c possessed, controlled, brought or caused to Commonwealth, or presented, for a bona.flde educational, scientinc, governm.ental or judicial purpose." 18 Pa.C.S. 63.12(f}{'!J Although depictions uti.lized by ponce investigators and at trialconstitute matertal.excepted from crimina! prosecution, contrary to Defe.ndanfs argument that same material in the possession of Defendant was not so excepted. Finally. Defendant cites several cases vvh.ich he. argues support the positions. raised in his brief First. he claims that in Commonwealth v. kushmar,ik; 154 A. 3d 862 (Pa. .Super. 2016), the Pennsylvania Superior Court found that the.acnon of the appellant had not enlarged the market for .child pornography and was not the kind of conduct the.raw sought to sanction - whith Defendant claims is similar to his situation. First it must.be noted that the Superior Court issued a nort-precedential memorandum opinion in that case with the citation Defendant utilized -- in his brief actually being a ·---..... ,.........,.......,_ ..... .: The Crimes Code pr0.vides m pertine11i pan: (f) Exceptmns. --This section does not apply to any 0f the fdllcwing: ·· · (1) A'i'ly rnaterial that is. viewed. nossessed, cqrfr.oiled, bro.ug tit or'causeo to .oe b.rought into m.1s c e-nrnohweattb, or presented, for a bona fide educational, scientific, gover.nrner.tal or Judicial purpose, 1.8. Pa,C,S c., 6312(1)(",l. 16 Exhibit B- Page 16 ................... """·-·-------·..···-----·--···-···-- ·---- reference to atable rather than a published opinion .. Per Pa. Superior Court LO.P. 65. 37, such an opinion ls not "to be relied upon or cited by a Court or a party in any .other action or procesdinq" except as otherwise. delineated none of which exceptions apply. in thtscase.". . Defendant next clalms that based upon QQ[!]'fiiom;vealth v.,_.lsk'Jt 83 A.3d 457 (Pa. Super. 2013). ··a.lssernination" under , 8 Pa.c.s ..5903(c) requires.. some affirmative act by an accused enc that the Cornmonwealtn's evidence estabushec that the images 1n this case were never viewed and the file was neveropened except by the police investigator, Consequently. Defendant arques, no proof existed hat th irnaqes wer depicted on his computer. In Levy, the question before Superior Courtwas whether sending a minor an e-mail with a. link to pornographic materials constituted dissemination of explicit sexual materials iri violation of 18 Pa.C.S. 5903. Superior Court ceterrnlned that an e-mail sent containing such a link constituted dissemination of the prohibited materials and the fact that "the recipient musttake the cursory step of clicking on the link" did not "remove that !ink from the sexual material'." Levv. supra. general definition of 'explicit at 46.6. Urilike1n Levy; Defendant was not convicted of an offense under 18 Pa.C.S 5903{c}. Rather, Detendantwas convicted.of violating 18Pa.C.S. $.312(£} ahd (d) Which prohibit .:1 person from intentionally viewing or knowingly possessing or controllinq. a prohibited depiGtion and of the>knowihg dissernination er-possession of such deetction' for purpose of disse.rriiriatipn. The evidence established that at 1 AO a.m. and 12:22 p.m . on.December 19, 2015, a user of Defendant's password protected computer ............-, ....·--···- -, ...... ,--.·.---- The conduct at issue in the non-preceeentlat case also di.a not involve deJ)ictions ofiprol1ibited sexual acts" clS herein. 17 Exhibit B - Page 17 -· -···-··-----.. ·-- ·----· --·-· ----- _,_ --------- __ ·-·-··-----. searched for, selected and then downloaded files. of chHd pornoqraphy onto Defendant's computer, with two ofthose files identified with the names of PTHC Vietnamese Child Brothel and PTSC Y Salome. Subsection (d) of t.8 Pa.:c.s. 6312 prohibits both the intentiona! viewing and knowingly possessing or controlling the prohibited material. The evidence establishes Defendant knowingly possessed or controlled the. material. Further; the police investigator received the material using the peer-to-peer network While Defendant's computer was turned "on" and Defendanrs file·:. -:s..haring program was . running. Via that. peer-to-peer network. the depictions wen . uploaded from Defendant's computer and transferred to the police computer upon which the depictions were downloaded. Finally, Defendant cites Commonwealth v. Diocloro, 970.A.2d 1 HJO (Pa. 2009}for the proposition that downloading, saving or printin9. images of child pornography must be established and tha! the Commonwealth only proved that an unopened file had-been downloaded by Defendant- not that he knew of its. existence. Contrary to Defendant's argument, however. evidence at trial included testimony that on December 19; 201.5 at 1:40 a.m., a file named PTHC Vietnamese Child Brothelcoritc1ining pornographic images of childrerrwas selected from the internet, a.fite was created on Defendant's computer f9r the images and the images were dowruoaded phd accessed on hJs computer. Similarly, another file containing child pornography with the name PTSC Y Salome was selected, and onewas created, downloaded and accessed onDefendant's computer on December 19, 201.5 at 12:2.2 p.m, The Pennsylvania Supreme Court in [)tQ.g_gro, stated that the Commonwealth need not prove an accusedpossessed Child pornography to establish a violation 0.f .18 Pa.C.S. 6312(d) if It can prove.Ihat he 18 Exhibit B ..... Page 18 knowingly controlled it as the intent ot the statute· tsto protect children by prohibiting the production and trafficking of child pornography .. 1.Q.,, at t107. The trial evidence does not support Defendant's argument that the Commonwealth's proof failed to establish his violation of the law. In light of the foregoing, the evidence at trial also sufficiently established that Defendant. used a comrnunicatton facility (as defined in 18 Pa.C.S:.. 751J1£1) io commit. cause or f cilitate a felony. Besides his argument about the sufficiency of evidence on the underlying felony charges. Detendantdces not argue any lack of sufficiency with respect to any particular element of the criminal use of communication facility offense. {18Pa.C.S. 7512(a)). Because Defendant'spost-trial motion, as supplemented by his brief, is found to lack merit it.is beirig denied. 19 Exhibit B - Page 19 .. _ · ·-----... ---·· -· ·--· __ , _._ ,,. ·---·-··_ ._. .. -· COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY -CR.!MINAL DIVISION COMMONWEALTH OFPENNSYLVANI.A No .. 915-'16 vs. KRISTIN DELORGE.• Defendant District Attorney's Office for the Commonwealth. Frank R. Cori, i;squire • for D f ndant ORDEROF COURT RUSSELL, J. day of May, 2018,.upon.consideratioh bf Defendant's post· AND NOW, this sentence motion and pursuant to the Decision iss.ued this day. it is hE=1'eby O OERED Defendant's post-sentence motion is O.ENIED. DEFENDANT rs NOTIFIED THAT HE HAS THE RIGHT TO APPEAL THIS DETERMINATION TOTHE PENNSYLVANlA SUPERJ.OR COURTWiJHIN TH1RTY(30)DAYS QF THE DATE OF ENTRY OF THIS ORDER. D.EFENDANT HAS THE RIGHT TO THE ASSISTANCE OF COUNSEL IN THE PREPARATION OF ANY APPEAL. IF DEFENDANT IS INDIGENT. HE MAY APPEAL 11\J FORMA PAUPE.RIS AND oerAINREPRESENiATION FROM<THE SCHUYLKILL COUNTY OFFICE OF THE PUBLIC DEFENDER OR REQUEST THE COURT TO ASSIGN COUNSEL.AND PROCEED WITH THE APPEAL.At NO EXPENSE TO DEFENDANT FOR COURT CQST$ OR ATTORNEY FEES. Defeneaat may remain subject to the previously imposed bail conditions in the event he files a timely appeal. However, if Defendantdoes not file an appeal \•Vithin thirty (30) days of entry of this order. Defendant's release on bail shall Immediately terminate and heshall 1 ···---- Exhibit B- J>age20 __ ....._ ,.. -··-----·---· ... -.. surrender to the Schuyfkil! County Prison to o.egin the service of the terras otmcarceraflon lrnposed at his sentencing. BY THE: COURT. .;,/··_/ .,,, ·' . / ,. ". · . ":!··.: ··.. ,. ..· (.: ______._. .. _._ , ·_-_ J. 2. ··-··-'"""" __ _ _ ..... ·-·--...........,......._. ............ ... ,, _,, ,_, ...... , .........,,....... ,-...·-·--····-·-----"'·-··-·---·-· .. . ----..-... ·····-. ·----·-··-·-···-- ..---·--·-
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