Opinion
J-S13035-17 No. 156 EDA 2016
07-17-2017
COMMONWEALTH OF PENNSYLVANIA v. WILLIAM F. HARTMAN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence December 7, 2015 in the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0004506-2014 BEFORE: BENDER, P.J.E., LAZARUS, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, William F. Hartman, appeals from the judgment of sentence entered in the Delaware County Court of Common Pleas following a jury trial and his convictions for possession of child pornography (four counts) and criminal use of communication facility (one count). Appellant asserts that his convictions were against the weight of the evidence, and that the trial court erred by permitting the admission of certain evidence and by imposing an illegal sentence. We affirm.
We adopt the facts and procedural history as set forth in the trial court's opinion. See Trial Ct. Op., 5/16/16, at 1-7. On December 7, 2015, Appellant was sentenced to a mandatory twenty-five to fifty years' imprisonment on each of the four counts of child pornography, with each sentence to be served concurrently. In addition, the trial court sentenced Appellant to an additional twelve to eighteen months' imprisonment and five years' probation on the criminal use of communication facility conviction, to be served consecutively to the sentence imposed for his child pornography convictions. On January 6, 2016, Appellant filed the instant timely appeal and subsequently filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The trial court filed a responsive opinion.
The trial court sentenced Appellant pursuant to 42 Pa.C.S. § 9718.2, which sets forth a mandatory minimum sentence for any person with a prior conviction for certain sexual offenses, including child pornography.
Appellant raises the following issues for our review:
I. Whether the trial court erred in not finding [Appellant's] verdict was against the weight of the evidence.Appellant's Brief at 4.
II. Whether the trial court committed errors during the trial which prejudiced [Appellant] and contributed to his guilty verdict which requires reversal for new trial.
III. Whether the trial court entered an illegal sentence as to the minimum mandatory sentence for subsequent conviction for possession of child pornography in violation of Alleyne and related cases and further abused its discretion in sentencing [Appellant] to consecutive time and probation on an already lengthy sentence.
Appellant's issues have been reordered for ease of disposition.
In his first issue, Appellant claims the verdicts were against the weight of the evidence. He argues that only four photos, out of thousands of images retrieved from his computer, were indicated to possibly constitute child pornography and were considered the "lowest category of questionable or of concern." Appellant's Brief at 12. Further, he asserts that others could easily have accessed his computer, even after the Commonwealth seized it, and therefore he was not the only person who could have been responsible for the photos.
In his second issue, Appellant challenges several evidentiary rulings by the trial court. He avers that the trial court erred by admitting into evidence a fifth photo, depicting purported child pornography, for which he was not charged. He contends that the trial court's decision to allow the jury to learn about his prior conviction for child pornography constituted error, which caused him substantial prejudice. Appellant also argues that the trial court erred by allowing evidence of "unsavory sites" he purportedly accessed via his computer when the Commonwealth was unable to present any evidence that the photos at issue were linked to those websites. Lastly, he asserts that the Commonwealth's closing argument contained prejudicial and impermissible comments regarding the prosecutor's personal belief that Appellant did not find the photos at issue to be "distasteful."
Appellant's third issue concerns challenges to his sentence. He specifically argues that his sentence was illegal, pursuant to Alleyne v. United States , 133 S. Ct. 2151 (2013), due to the mandatory minimum sentence applied. Further, he argues that he did not receive proper notice of the Commonwealth's intention to seek a mandatory minimum sentence. Moreover, he also argues the sentence reflected a "gross disproportionality" between his crime, which involved a "mere" four photographs, and his "extremely lengthy sentence."
We begin by noting that the weight of the evidence is exclusively for the finder of fact, who "is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses." Commonwealth v. Diggs , 949 A.2d 873, 879 (Pa. 2008). The trial judge may award a new trial only if the fact finder's "verdict is so contrary to the evidence as to shock one's sense of justice." Commonwealth v. Rivera , 983 A.2d 1211, 1225 (Pa. 2009) (citations omitted). "[A]ppellate review is limited to whether the trial judge's discretion was properly exercised, and relief will only be granted where the facts and inferences of record disclose a palpable abuse of discretion." Commonwealth v. Ratushny , 17 A.3d 1269, 1272 (Pa. Super. 2011) (citation omitted).
The instantly relevant statutory provisions include:
(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.A. § 6312(d).
Further, it is axiomatic that:
[q]uestions regarding the admission of evidence are left to the sound discretion of the trial court, and we, as an appellate court, will not disturb the trial court's rulings regarding the admissibility of evidence absent an abuse of that discretion. An abuse of discretion is not merely an error of judgment; rather, discretion is abused when "the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the record."Commonwealth v. Trinidad , 96 A.3d 1031, 1036 (Pa. Super. 2014) (quotations and citations omitted).
Generally, "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be admissible "when offered to prove some other relevant fact, such as motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident." Commonwealth v. Ross , 57 A.3d 85, 98 (Pa. Super. 2012) (en banc). Moreover, "[t]he law presumes that the jury will follow the instructions of the court." Commonwealth v. Chmiel , 30 A.3d 1111, 1184 (Pa. 2011) (citations omitted).
Regarding Appellant's sentencing claims, Alleyne does not require that the fact of a prior conviction be presented at trial and found beyond a reasonable doubt. Alleyne , 133 S. Ct. at 2160 n.1 (noting, "In Almendarez-Torres v. United States , 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), we recognized a narrow exception . . . for the fact of a prior conviction.")
In addition, this Court has stated that
discretionary aspects of [an appellant's] sentence [ ] are not appealable as of right. Rather, an appellant challenging the sentencing court's discretion must invoke this Court's jurisdiction by satisfying a four-part test.
Commonwealth v. Leatherby , 116 A.3d 73, 83 (Pa. Super. 2015) (some citations omitted).We conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
After careful consideration of the record, the parties' briefs, and the thorough and well-reasoned decision of the Honorable James F. Nilon, Jr., we affirm on the basis of the trial court's decision. See Trial Ct. Op. at 8-35 (holding (1) Appellant's conviction was not against the weight of the evidence where trial testimony established that the photos at issue constituted child pornography under Pennsylvania law, it is unlikely any other persons had access to Appellant's computer, and a search of Appellant's computer revealed 400 "hits" for the words "preteen and "pre teen" (2) the trial court properly admitted a) a fifth photo in order to demonstrate the lewd character of the nudity depicted in the other photographs as well as Appellant's intent, b) evidence of Appellant's prior conviction for child pornography to impeach Appellant, c) Appellant's relevant search history on his computer, and d) the district attorney's "fair comment" regarding Appellant's preferences during closing argument (3) Appellant's minimum mandatory sentence, imposed based on a prior conviction, is not illegal pursuant to Alleyne ). Accordingly, we affirm the judgment of sentence.
We note that Appellant failed to properly preserve his excessive sentence claim either during sentencing or by post-trial motion. See Leatherby , 116 A.3d at 83. Nevertheless, we agree with the trial court that Appellant's claim regarding the court's imposition of a consecutive sentence does not raise a substantial question in this case. Trial Ct. Op., at 23; See Commonwealth v. Pass , 914 A.2d 442, 446-47 (Pa. Super. 2006) (holding Pennsylvania law "affords the sentencing court discretion to impose its sentence concurrently or consecutively to other sentences being imposed at the same time or to sentences already imposed. Any challenges to the exercise of this discretion ordinarily does not raise a substantial question.") --------
Judgment of sentence affirmed.
P.J.E. Bender and Judge Lazarus join the memorandum.
Justice Fitzgerald files a concurring statement, which P.J.E. Bender joins. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/17/2017
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