Commonwealth v. Benson

1

COMMONWEALTH OF PENNSYLVANIA v. WAYNE FRANKLIN BENSON, JR. Appellant

No. 468 MDA 2022

No. J-S39019-22

Superior Court of Pennsylvania

March 9, 2023

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence Entered October 11, 2021 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000829-2020

Joseph D. Seletyn, Esq.

BEFORE: PANELLA, P.J., BENDER, P.J.E., and NICHOLS, J.

MEMORANDUM

BENDER, P.J.E.

Appellant Wayne Franklin Benson, Jr., appeals from the judgment of sentence of 16 to 32 months of incarceration and a consecutive three-year period of probation imposed following his convictions for a series of crimes all arising out of his surreptitious photographing of his underage stepdaughter while she used the bathroom. After careful review, we discharge Appellant's conviction for obscenity, affirm all other challenged convictions, and remand for resentencing as our decision disrupts the sentencing scheme.

The victim, G.B., lived with her mother, brother, and Appellant who was her stepfather. Appellant and G.B.'s mother married in 2008, when G.B. was approximately three years old. At some unspecified time on the evening of June 23, 2020, G.B. went to use the bathroom located across from her bedroom. G.B., who was then 14 years old, was wearing pink shorts and a gray top. She pulled her pants and underwear down, partially exposing her vagina. While using the toilet, G.B. saw flashes of light coming from the linen closet. G.B. saw that the closet door was open and discovered a phone, which she recognized as Appellant's. G.B. opened the phone's camera application and saw several photographs of her using the toilet. She then deleted the pictures. As G.B. offered the only evidence regarding the photographs, we quote her description of the events:

Q. Okay, do you recall what you were wearing?

A. Yes. I was wearing pajamas; pink shorts and a gray top.

Q. So when you went into the bathroom that night, did you have to pull down your pants?

A. Yes.

Q. Did you remove anything else?

A. I removed my underwear.

Q. Okay, and then you proceeded to use the toilet?

A. Yes.

Q. Okay. When you removed your underwear and your pants, what part of your body, if at all, was exposed?

A. My shirt covered most of it, but some of my vagina was showing.

Q. Okay. When you went to the bathroom[,] did you notice anything in the - across from the toilet?

A. I noticed flashing.

* * *

Q. And when you picked up the phone did you see anything on the phone?

A. Yes.

Q. What did you see?

A. I saw about nine pictures of me going to the bathroom.

Q. Okay. What did you do at that point?

A. I went back to my room.

Q. Did you do anything to the phone before you went back to your room?

A. Yes, I deleted the pictures.

N.T., 6/23/21, at 31-33.

G.B. immediately informed her maternal grandparents, who visited the home shortly thereafter. Appellant acquiesced to G.B.'s grandfather's demand that Appellant turn over his cellphone. The phone was subsequently turned over to the Pennsylvania State Police.

Corporal Christopher Hill extracted the phone's data and performed a forensic search but could not recover the images deleted by G.B. Corporal Hill determined that Appellant's phone activated the camera application seventeen times on June 23, 2020, with the last occurring at 10:00 p.m. Corporal Hill recovered an image taken on the day of the incident, showing Appellant touch his watch. Corporal Hill testified that an Apple iWatch can access the phone's camera application, and the image's metadata showed that the image was taken via Appellant's iWatch.

The Commonwealth also called Corporal Tyler Morse, who interviewed Appellant while he and another trooper transported Appellant from a mental health facility to a Pennsylvania State Police barracks.^[1] While riding in the backseat with Appellant, Corporal Morse issued Miranda^[2] warnings, and Appellant agreed to speak. Appellant admitted that he placed his phone in the linen closet and used his iWatch to take pictures of G.B. while she used the bathroom. He stated that "this was the only time he ever tried to photograph the victim when she did not have clothing on." N.T., 6/23/21, at 81. The police vehicle recorded the conversation and an audio recording of Appellant's statements was played to the jury.

The Commonwealth charged Appellant with six total counts, one of which was withdrawn. The jury convicted Appellant of the remaining five counts.^[3]

On October 11, 2021, the trial court sentenced Appellant to an aggregate term of 16 to 32 months of incarceration followed by three years of probation. Appellant filed a timely post-sentence motion on October 20, 2021. The trial court did not issue an order during the 120-day period, which expired on February 17, 2022. Pa.R.Crim.P. 720(B)(3)(a). Thus, the motion should have been denied by operation of law on that date, as the docket does not reflect that the court issued an order granting the permitted one-time extension of thirty days. Pa.R.Crim.P. 720(B)(3)(b-c). Appellant filed a protective notice of appeal on March 17, 2021, and on April 1, 2022, the trial judge signed an order purporting to deny the post-sentence motions. Appellant thereafter filed a notice of appeal from that order.^[4]

Appellant filed a concise statement of matters complained of on appeal, and the trial court issued its opinion in response. The Commonwealth filed a letter stating it would not file a brief and chose to rest on the trial court opinion. Appellant raises the following issues for our review.

I. Whether the evidence was insufficient as a matter of law to sustain [Appellant]'s two convictions for sexual abuse of children where the child was not engaged in any conduct constituting a prohibited sexual act or simulation where the evidence revealed only that the child was using the toilet and where no actual images were ever introduced into evidence?

II. Whether the evidence was insufficient as a matter of law to establish that [Appellant] used a communication facility in the commission of a felony, since the evidence in those felony counts (counts [one] and [two]) were insufficient to support those convictions?

III. Whether the evidence was insufficient as a matter of law to demonstrate beyond a reasonable doubt that the alleged photographs constituted obscene material as defined by the statute where the evidence revealed only that the child was briefly using the toilet and there was no evidence that her genitals were ever visible as she was seated and no actual images were introduced at trial?

IV. Whether [Appellant] was denied his due process rights to a fair trial under both the United States and Pennsylvania constitutions where the Commonwealth improperly commented multiple times on his right to remain silent after Miranda warnings were provided?

Appellant's Brief at 4 (unnecessary capitalization omitted).

The first issue challenges the sufficiency of the evidence to convict Appellant of counts one and two, which were graded as felonies. The second issue turns on the first, as count three criminalizes the use of a communication facility, which is defined to include a phone, to commit another felony. 75 Pa.C.S. § 7512. Thus, Appellant's second issue fails if the evidence was sufficient at counts one and/or two. See Appellant's Brief at 20 ("Here, the basis for this … charge, as set forth by the trial court in its instructions, was the commission of the felony crimes in [c]ounts [one] and [two.]").

Our standard of review is well-settled. Whether the evidence was sufficient to sustain the charge presents a question of law, and our standard of review is de novo, and our scope of review is plenary. Commonwealth v. Walls, 144 A.3d 926 (Pa. Super. 2016). We must determine:

[W]hether the evidence at trial, and all reasonable inferences derived therefrom, when viewed in the light most favorable to the Commonwealth as verdict-winner, [is] sufficient to establish all elements of the offense beyond a reasonable doubt. We may not weigh the evidence or substitute our judgment for that of the fact-finder. Additionally, the evidence at trial need not preclude every possibility of innocence, and the fact-finder is free to resolve any doubts regarding a defendant's guilt unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. When evaluating the credibility and weight of the evidence, the fact-finder is free to believe all, part or none of the evidence. For purposes of our review under these principles, we must review the entire record and consider all of the evidence introduced.

Commonwealth v. McCoy, 199 A.3d 411, 414-15 (Pa. Super. 2018) (quoting Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014)).

Appellant asserts that the Commonwealth failed to present sufficient evidence concerning how the photographs depicted G.B.'s genitalia, thereby precluding his convictions for violating the following two separate subsections of Section 6312:

(b) Photographing, videotaping, depicting on computer or filming sexual acts.--

. . . .

(2) Any person who knowingly photographs, videotapes, depicts on computer or films a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such an act commits an offense.

. . . .

(d) Child pornography.--Any person who intentionally views or knowingly possesses or controls any book, magazine, pamphlet, slide, photograph, film, videotape, computer depiction or other material depicting a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such act commits an offense.

18 Pa.C.S. § 6312(b)(2), (d) (emphasis added).

Thus the sole element at...