Com. v. Jarowecki

923 A.2d 425

COMMONWEALTH of Pennsylvania v. Craig Scott JAROWECKI, Appellant.

Superior Court of Pennsylvania.

Submitted February 5, 2007.

Filed April 17, 2007.

Allan L. Sodomsky, Reading, for appellant.

Jason P. Lutcavage, Asst. Dist. Atty., Reading, for Com., appellee.

BEFORE: BENDER, PANELLA and TAMILIA, JJ.

OPINION BY TAMILIA, J.

¶ 1 Craig Scott Jarowecki appeals from the July 3, 2006, aggregate judgment of sentence of 37 months to 17 years imprisonment, followed by 20 years of special probation, imposed after he was convicted by a jury of eight counts of sexual abuse of children.¹

¶ 2 In January of 2005, America Online (AOL) notified law enforcement authorities it had detected that a person utilizing the email address "cj8959@aol" had sent an image depicting child pornography through an email transmission. Record, Affidavit of Probable Cause. AOL, pursuant to an Order of court, revealed that the subscriber listed as the owner of the email address was appellant. Id. Acting on this information, authorities in Berks County obtained a search warrant for appellant's residence. Id. On January 20, 2005, police executed the warrant on appellant's residence, seizing computers and removable storage disks. Id.

¶ 3 A subsequent forensic examination of several of the LS-120 disks and CD-ROM disks² revealed several still and moving digital images that detectives suspected were child pornography. Id. After recovering these images, police consulted with a pediatrician who verified that the subjects in these images were clearly under the age of 18. Id. Shortly thereafter, appellant was charged with ten counts of sexual abuse of children.³

¶ 4 Trial commenced on March 29, 2006, and the jury returned its guilty verdict on March 31, 2006.⁴ At sentencing on July 3, 2006, the Commonwealth moved to apply the enhanced grading provision found in 18 Pa.C.S.A. § 6312, Sexual abuse of children, (d)(2), Possession of Child Pornography, which provides:

(2) A first offense under this subsection is a felony of the third degree, and a second or subsequent offense under this subsection is a felony of the second degree.

Id. The trial court granted the Commonwealth's motion and sentenced appellant to a term of twelve months to seven years imprisonment on the first sexual abuse count, grading the count as a third-degree felony. The court then applied section 6312(d)(2) and graded the remaining seven sexual abuse convictions as second-degree felonies. Accordingly, appellant was sentenced on the second through fourth counts of sexual abuse to three concurrent terms of 25 months to 10 years imprisonment, to run consecutively to the term of imprisonment imposed for count one. On the remaining four counts, appellant was sentenced to two 10-year terms of special probation.

¶ 5 After being granted an extension of time in which to file post-trial motions, appellant filed a post-sentence motion on July 25, 2006, which was denied the next day. This appeal followed.

¶ 6 Appellant raises the following issues for our review:

A. Whether the Court erred in permitting, on motion of the Commonwealth, and over objection of defense counsel, the Information to be amended on July 3, 2006, reflecting an enhancement in grading from F-3 to F-2 for Counts 2-8 as a result of Appellant's conviction on Count 1 of the Information?

B. Whether the enhanced penalty Appellant received at sentencing on Counts 2 through 8 as a result of his conviction on Count 1 was illegal as no statutory support was given?

C. Whether the verdict was against the weight of the evidence where the trial court erred in permitting Detective Stewart as an expert in the area of Mac computers when Detective Stewart's own testimony asserted that he was not?

D. Whether the verdict was against the weight of the evidence where AOL representative Don Colcolough, certified as an expert in law enforcement and legal affairs as it relates to AOL, testified to the "most common" method of using AOL to send an image?

E. Whether the verdict was against the weight of the evidence where the trial court permitted, over objection of defense counsel, the thumbnail pornographic images to be displayed to the jury via a Power Point slide presentation and enlarged to a size of 6 feet by 8 feet?

Appellant's brief at 6-7.

¶ 7 We note that appellant also raised three additional issues, the first of which challenges the discretionary aspects of sentencing while the latter two challenge the sufficiency of the evidence. Appellant's brief at 8. These issues have been waived by virtue of appellant's failure to comply with Pennsylvania Rule of Appellate Procedure 2116, Statement of Questions Involved, (a) General rule, which provides:

The statement of the questions involved must state the question or questions in the briefest and most general terms, without names, dates amounts or particulars of any kind. It should not ordinarily exceed 15 lines, must never exceed one page, and must always be on a separate page, without any other matter appearing thereon. This rule is to be considered in the highest degree mandatory, admitting of no exception. . . .

Id. (emphasis added).

¶ 8 Appellant's statement of the questions involved easily exceeds 30 single-spaced lines and is almost one and a half pages in length. Appellant's brief at 7-8. Many of the lines are consumed with argumentative statements corresponding to the issues raised. In our analysis, therefore, we will consider only the arguments appellant raises on the first page of his statement of the questions involved. Commonwealth v. Andrulewicz, 911 A.2d 162, 164 n. 7 (Pa.Super.2006) (applying Rule 2116); see also, Kanter v. Epstein, 866 A.2d 394, 402 (Pa.Super.2004). We do not believe the language of Rule 2116 allows for exceptions.⁵

Grading and Sentence Enhancement

¶ 9 In fashioning appellant's sentence, the trial court relied on the grading enhancement provision contained in 18 Pa. C.S.A. § 6312(d)(2), supra, which, as previously stated, provides:

(2) A first offense under this subsection is a felony of the third degree, and a second or subsequent offense under this subsection is a felony of the second degree.

Id. Appellant contends the trial court erred by permitting the Commonwealth, on the date of sentencing, to amend the information to allow for counts two through eight to be prosecuted as felonies of the second degree rather than the third degree thus resulting in imposition of a harsher sentence. In forwarding this contention, appellant maintains the phrase "second or subsequent offense" does not allow for a conviction within a multiple count complaint to serve as a grading enhancement for another conviction contained within the same complaint.

¶ 10 Appellant's argument raises a pure question of law and, therefore, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Sloan, 589 Pa. 15, 22, 907 A.2d 460, 465 (2006). A diligent research effort has failed to uncover any case in this Commonwealth's jurisprudence where the application of 18 Pa.C.S.A. § 6312(d)(2) has been challenged.

¶ 11 In allowing the Commonwealth to proceed, the trial court relied exclusively on the analysis in Commonwealth v. Vasquez, 562 Pa. 120, 753 A.2d 807 (2000). In Vasquez, our Supreme Court held that the phrase: "If at the time of sentencing the defendant has been convicted of another drug trafficking offense" contained in 18 Pa.C.S.A. § 7508(a)(3)(i), Drug trafficking sentencing and penalties, allowed for a conviction within a multiple count complaint to serve as a sentencing enhancement for another conviction contained within the same complaint. Vasquez at 809. In relying on the Vasquez analysis, the trial court noted that 18 Pa.C.S.A. § 6312(d)(2), much like section 7508(a)(3)(i), does not make a distinction between convictions that arise from a multiple count complaint or from separate complaints and, hence, the logic in Vasquez was applicable. Trial Court Opinion at 4-5.

¶ 12 After careful consideration, we affirm the decision of the trial court and, in doing so, hold that one conviction in a multiple count complaint can serve as a "second or subsequent offense" for purposes of enhancing the grade of another conviction contained within the same complaint under the grading enhancement provision contained within section 6312(d)(2).

¶ 13 Appellant argues that the phrase "second or subsequent offense" contained in section 6312(d)(2) is identical to the language used in the Pennsylvania sentence enhancement provision for violent crimes. See 42 Pa.C.S.A. § 9714, Sentences for second and subsequent offenses, (a)(2), Mandatory sentence.⁶ Appellant points out that the phrase "second and subsequent offense," which is the title to section 9714, has been construed by the Pennsylvania Supreme Court as requiring that the first conviction predate a second and subsequent conviction in order for the latter to be enhanced by the former under section 9714(a).⁷ See Commonwealth v. McClintic, 589 Pa. 465, 909 A.2d 1241, 1252 (2006); Commonwealth v. Shiffler, 583 Pa. 478, 879 A.2d 185, 194 (2005); Commonwealth v. Dickerson, 533 Pa. 294, 621 A.2d 990, 992 (1993) (interpreting the precursor to the current version of section 9714(a)(2)). According to appellant, because the phrasing in section 6312(d)(2), now under consideration, is identical, we are compelled to find that an offense predate a second offense in order for the latter to be enhanced by the former for purposes of section 6312(d)(2).

¶ 14 We find the premise of appellant's argument to be flawed. Appellant's comparison of the language in 18 Pa.C.S.A. § 6312(d)(2) with the language in 42 Pa. C.S.A. § 9714(a)(2) is based on a misreading of both provisions. Section 6312(d)(2) states that enhanced grading is appropriate when the offense is the defendant's "second or subsequent" violation. (Emphasis added.) Section 9714(a)(2), on the other hand, is entitled "Sentences for second and subsequent...