Commonwealth v. Sauers

159 A.3d 1

COMMONWEALTH of Pennsylvania, Appellee

v.Nathan Robert SAUERS, Appellant

No. 3123 EDA 2015

Superior Court of Pennsylvania.

Submitted February 14, 2017

Filed March 29, 2017

Bradley W. Weidenbaum, Brodheadsville, for appellant.

Michael T. Rakaczewski, Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.

BEFORE: SHOGAN, SOLANO, and

PLATT,^* JJ.

OPINION BY SHOGAN, J.:

Nathan Robert Sauers ("Appellant") appeals from the judgment of sentence entered on June 16, 2015, in the Monroe County Court of Common Pleas. We affirm the convictions, vacate in part the judgment of sentence, and remand for re-sentencing.

On August 4, 2013, Monroe County Detective Brian Webbe was using a proprietary police version of the Ares peer-to-peer file-sharing network¹ known as Ares Round-up Software ("software") to investigate on-line child pornography. During his search, Detective Webbe identified a computer with an IP address of 50.29.128.171 and a username of "FromK9to5" as containing downloaded child pornography. The detective downloaded ten files from the suspect computer. Armed with a court order, Detective Webbe identified Appellant as the owner of the IP address and username. Upon execution of a search warrant at Appellant's home, Detective Webbe found Appellant's Dell laptop computer. Because no child pornography was immediately discovered on the computer, Detective Webbe used forensic software to examine the computer. He found files indicating that Appellant's computer had recently downloaded the Ares program and that the program had been used to view, download, and share child pornography.

Appellant was charged with ten counts of possession of child pornography, ten counts of dissemination of child pornography, and one count of criminal use of a communications facility.² Following a more in-depth examination of Appellant's computer, Detective Webbe found an additional eighty-seven files containing child pornography in the unallocated space of Appellant's computer. Consequently, Appellant was charged under a separate docket with eighty-seven counts of possession of child pornography. The cases were joined for trial.

A jury convicted Appellant on all eleven counts on the first docket, and it acquitted him of the eighty-seven counts on the second docket. The trial court sentenced Appellant to incarceration for an aggregate term of sixty to 120 months. Additionally, the trial court designated Appellant as a Tier III sexual offender and directed his compliance with the lifetime reporting requirements of the Sexual Offender Registration and Notification Act ("SORNA"), 42 Pa.C.S. §§ 9799.10 –9799.41. Appellant filed post-sentence motions, which the trial court denied. Appellant filed a timely appeal. He and the trial court complied with Pa.R.A.P. 1925.

On appeal, Appellant raises the following questions for our review:³

1. Whether the trial court abused its discretion when it admitted into evidence video evidence of child pornography and photographic evidence of child pornography without first viewing the entire content prior to publishing same to the jury thereby inflaming the passions of the jury, and thus, denying [A]ppellant a fair trial.

2. Whether the failure of the Commonwealth to provide and/or allow forensic evaluation of their "Modified Ares—Roundup["] Software denied [A]ppellant a fair trial under Article I Section 9 of the Pennsylvania Constitution, and the 6^th and 14^th Amendment[s] of the United States Constitution,

AND

Whether the Commonwealth's claim that the "Modified Ares—Round-up ["] Software is proprietary, and thus not subject to distribution or review by outside computer forensic experts denied [Appellant] a fair trial by preventing [Appellant] from confronting the evidence against himself at trial under the Pennsylvania Constitution, Article 1 Section 9, and the "confrontation clause" of [the] 6^th Amendment of the United States Constitution.

3. Whether the evidence was sufficient to support the verdict that [Appellant] actually possessed and/or disseminated child pornography.

4. Whether the trial court's jury instructions regarding the definition of possession which included the trial court judge's own instruction ignored other jurisdictions definitions of possession, and denied [Appellant] a fair trial under both Article I Section 9 of the Pennsylvania Constitution and the 6^th Amendment of the United States Constitution.

5. Does a trial court deny a defendant a fair trial under Article I Section 9 of the Pennsylvania Constitution, Sixth Amendment, and the Fourteenth Amendment of the United States Constitution where it denies individual voir dire in a child pornography case where: the social prejudices associated with child pornography in a public forum voir dire denies a defendant the ability in vetting individual jurors regarding social, religious and personal prejudices on the subject of child pornography?

6. Whether the sentencing court abused its discretion where it made repeated references during sentencing, trial, and pretrial to the fact that [Appellant] made the trial court and the jurors see the child pornography during his trial, and thus, subjected the jury to being victims themselves.

7. Whether the sentencing court abused its discretion wherein the record demonstrates repeatedly that the sentencing court punished [Appellant] for taking his case to trial.

8. Whether the trial court abused its discretion where it used a far more egregious case as its reasons and justifications for imposing the sentence it did upon [Appellant].

9. Whether the sentencing court abused its discretion where it imposed incarceration upon [Appellant] (a first time offender[) ] where the very case the sentencing court used to justify its sentence was a case involving a recidivist offender.

Appellant's Brief at 7–8 (renumbered).

Appellant first challenges the admission of the Commonwealth's photographic and video evidence of child pornography. With regard to the admission of evidence:

we give the trial court broad discretion, and we will only reverse a trial court's decision to admit or deny evidence on a showing that the trial court clearly abused its discretion. An abuse of discretion is not merely an error in judgment, but an overriding misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence or the record.

Commonwealth v. Flamer , 53 A.3d 82, 86 (Pa. Super. 2012) (citations and quotation marks omitted). The trial court will be reversed only if an error in the admission of evidence contributed to the verdict. Commonwealth v. Konias , 136 A.3d 1014, 1022 (Pa. Super. 2016), appeal denied , 145 A.3d 724 (Pa. 2016).

Admissibility depends on relevance and probative value. Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable, or supports a reasonable inference or presumption regarding a material fact. Once evidence is found to be relevant, it will be inadmissible only if its probative value is substantially outweighed by the danger of unfair prejudice or confusion.

Commonwealth v. Lilliock , 740 A.2d 237, 244 (Pa. Super. 1999) (quotation marks and citations omitted); Pa.R.E. 403.

Appellant claims the trial court erred as "gate-keeper" when, prior to publishing the materials to the jury, the trial court viewed three still images and four videos that the Commonwealth intended to introduce but then allowed the Commonwealth to admit all of the videos, and, thereby "exposed the jury to hig[h]ly prejudicial and inflame[m]atory evidence without viewing [it] prior to showing it to the jury." Appellant's Brief at 11 (citing N.T., 3/3/15, at 76–88, 184–202; United States v. Cunningham , 694 F.3d 372 (3^rd Cir. 2012) ). Additionally, Appellant argues, admission of ninety-seven images and videos, when Appellant was willing to stipulate to their content, was prejudicial, cumulative, and not harmless error. Id. at 10, 12, 13.

In response, the Commonwealth explains, "[I]n an effort to minimize any potential prejudicial effect, the Commonwealth sought to introduce only a sample of the [challenged] evidence and not the entire ‘collection.’ " Commonwealth's Brief at 9. Moreover, although it was not required to do so, the Commonwealth would have agreed to Appellant's stipulation that the remaining images constituted child pornography, but Appellant refused to stipulate. Consequently, the Commonwealth considered it necessary to show all of the images to sustain its burden. Id. ; N.T., 3/3/15, at 12, 74.

The trial court addressed this issue on the pretrial record as follows:

You can't just say I object to all [of] the Commonwealth's evidence that it may or may not put in and have a judge make a peremptory ruling. What you can do is to say that if—which is what both of you said this morning—is that within that evidence there are some individual depictions, some individual videos that you believe that under no circumstance should come into this case and if you want to identify them and have me rule on them now I will; but I'm not going to rule on in the abstract what the Commonwealth may or may not put into evidence.

* * *

If I took your argument to its logical conclusion then in every criminal case the [c]ourt should have a pre-hearing conference, ask the Commonwealth to trot out it's [sic] evidence, lay it out on the table, play it on a TV screen, get a tape recorder out here and play the audios, either get people to come in and give their testimony or provide a summary on it and then decide ahead of time what's admissible and what's not admissible.

I understand that that's the logical full conclusion to what you're arguing. I understand that the [c]ourt ultimately has to be the arbiter of what's fair or not; but the [c]ourt just doesn't go out and do things otherwise we don't need a defense and the Commonwealth[;] we just look at the evidence ourselves and

...