Commonwealth v. Norris

258 A.3d 499 (Table)

COMMONWEALTH of Pennsylvania

v.Timothy Alan NORRIS, Appellant

No. 380 WDA 2020

Superior Court of Pennsylvania.

Filed: June 7, 2021

MEMORANDUM BY LAZARUS, J.:

Timothy Alan Norris appeals from the judgment of sentence, entered in the Court of Common Pleas of Armstrong County, after a jury convicted him of one count of sexual abuse of children—dissemination of photographs,¹ fifty counts of sexual abuse of children—possession of child pornography,² and one count of criminal use of a communication facility.³ After careful review, we affirm.

The trial court set forth the facts of this case as follows:

On January 6 and 7, 2015, Corporal Gerhard Goodyear of the Pennsylvania State Police ("PSP") Computer Crimes Unit was monitoring investigative peer-to-peer ("P2P") file sharing software used by the PSP to combat the dissemination of child pornography. The software operates 24 hours a day and scans the BitTorrent network looking for files associated with recognized child pornography.

On January 6, 2015, between 8:35 a.m. and 10:13 a.m., the PSP software was contacted by a computer using an internet provider ("IP") address associated with [Norris]'s residence. The PSP computer was able to download from that computer several images suspected to be child pornography. The next day, January 7, 2015, between 1:26 a.m. and 2:33 a.m., the PSP computer again was contacted by a computer via an IP address associated with [Norris]'s residence. The PSP computer again was able to download [37] images of suspected child pornography.

Police obtained and executed a search warrant at [Norris]'s residence in May 2015. During the search and subsequent forensic examination of several devices found in [Norris]'s apartment, police found [approximately 1,530] images of suspected child pornography on [Norris]'s computer and two flash drives. [At least one of the images was found on both flash drives, and other images found on the flash drives matched images also found on the desktop.⁴ ] During a subsequent interview with [Norris], [he] admitted that the computer was his, that it was the only computer in his apartment, that he lived alone, that the two flash drives found in his bedroom were his, that he used the uTorrent software found on his computer to download games, movies, and other media, and that he was familiar with [a] common search term[ ] used to find child pornography on the internet. [Norris] denied [ ] having downloaded[, shared,] or [ ] any knowledge of[,] the illegal images. [PSP also recovered seven images of Norris and his family members from the "Leaving" folder on the desktop.⁵ At trial, testimony revealed that Norris's computer originally connected to the PSP investigative software because it was "actively searching for child pornography" on the P2P network.⁶ Additionally, testimony revealed that Norris moved,⁷ and likely renamed,⁸ some of the suspected prohibited files after downloading them from the P2P network.]

Trial Court Opinion, 5/20/20, at 3-4.

The Pennsylvania State Police filed charges against Norris on March 29, 2017. Norris waived his right to a preliminary hearing on May 4, 2017, and a jury trial was subsequently held on April 16 and 17, 2019. At the conclusion of the trial, the jury returned guilty verdicts on all counts. The trial court sentenced Norris on September 24, 2019, to an aggregate term of 120 to 240 months' incarceration.⁹

On October 4, 2019, Norris filed a timely post-sentence motion.¹⁰ By order entered October 7, 2019, the trial court appointed new post-sentence counsel, who requested a continuance of the hearing originally scheduled for December 3, 2019. The continuance motion did not request an extension pursuant to Pa.R.Crim.P. 720(B)(3)(b). The court granted the motion and continued the hearing to February 4, 2020, three days after the 120-day window for the trial court to make a decision on post-sentence motions, which expired on February 1, 2020. See Pa.R.Crim.P. 720(B)(3)(a). Counsel then filed an amended post-sentence motion¹¹ on February 4, 2020.¹² The clerk of courts entered an order on February 5, 2020, reflecting that the motion was denied as a matter of law. See Pa.R.Crim.P. 720(B)(3)(c). [Norris] filed a notice of appeal on March 4, 2020, and on March 5, 2020, the trial court ordered him to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal within 21 days. Norris filed his concise statement on May 8, 2020.¹³

On appeal, Norris raises the following issues for our review:

(1) Did the trial court err in denying [Norris]'s post-sentence motion seeking a new trial on the basis that the evidence presented by the Commonwealth at trial was insufficient to sustain the verdict?

(2) Did the trial court err in denying [Norris]'s post-sentence motion seeking a new trial on the basis that the jury's verdict was contrary to the weight of the evidence presented at trial[?]

Appellant's Brief, at 13 (unnecessary capitalization omitted).

Norris first challenges the sufficiency of the evidence to sustain all of his convictions. Specifically, Norris claims that the Commonwealth failed to prove that Norris knowingly disseminated and possessed prohibited material. Appellant's Brief, at 23. Norris supports this claim by reasoning that the Commonwealth's only evidence on his mind state was that Norris used "uTorrent" software, and that that software included a feature where files are automatically made available to other parties for download. Norris supports his argument by claiming that Corporal Goodyear testified that:

This is actually the installation process for the program uTorrent 3.4.2. This is the version of software that was reportedly being used at the time tha[t] I conducted the investigative downloads in reference to this case. This particular version of software was released on January 2, 2015.... We click ["]next["], and now we see the end user license agreement. With uTorrent it is very interesting because within their user agreement, it specifically tells the user that[,] in using this program[,] it will be sharing back out into the network. ... "Your use of the software to download files will in turn enable other users to download pieces of those files from you[, t]hereby maximizing download speeds for all users. In the software[,] only files that you are explicitly downloading or sharing or have downloaded and shared through BitTorrent,^{[14 ]} will be made available to others."

N.T. Jury Trial, 4/16/20, at 24-25.

Norris argues that evidence that an individual has accepted an end user agreement for any software or service, in the absence of any other evidence as to the knowing or intentional dissemination of material, is insufficient to establish the mens rea element of dissemination beyond a reasonable doubt. Appellant's Brief at 25-26. Moreover, Norris claims that Corporal Goodyear misled the jury when he testified that:

In other words, [ ] on your Windows computer you have a folder specifically for pictures. I can share as little or as much of that folder as I want to, but only those files that I specifically designate will be shared . It will not randomly go out onto your computer looking for other files from different locations to share out. It is only if the user specifically designates it to be shared .

N.T. Jury Trial, 4/16/20, at 25 (emphasis added). Norris reasons that Corporal Goodyear's testimony, when taken as a whole, leads to "the inference [ ] that[,] for a user to share any file, including both ones existing prior to the download and installation of the uTorrent software and files specifically downloaded using uTorrent, that the[ user] must[,] in fact[,] specifically designate that file for sharing within the uTorrent software." Appellant's Brief, at 26-27. Norris notes that the trial court relied on this very inference in concluding that the evidence was sufficient to prove Norris acted with the necessary mens rea .¹⁵ Following our review of the record, we disagree and find that Corporal Goodyear's testimony, when read as a whole, clearly indicated that files were automatically uploaded, or "seeded," subsequent to their download using the P2P software, and, we find that the Commonwealth adduced sufficient evidence to sustain each of Norris's convictions.

Our standard of review for a challenge to the sufficiency of the evidence is well-settled:

The standard we apply in reviewing the sufficiency of evidence is whether, viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for that of the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder 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. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact[,] while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part[,] or none of the evidence.

Commonwealth v. Colon-Plaza , 136 A.3d 521, 525-26 (Pa. Super. 2016) (quoting Commonwealth v. Robertson-Dewar , 829 A.2d 1207, 1211 (Pa. Super. 2003) ).

We have previously found that

[a] person is guilty of sexual abuse of children, dissemination of photographs, videotapes, computer depictions, and films, if he knowingly possesses for the purpose of sale, distribution, delivery, dissemination, transfer, display or

...