Com. v. Bowman, K.

• Court: Superior Court of Pennsylvania
• Decided: August 2, 2021
• Docket: 296 WDA 2020
• Status: Unpublished

Opinion

J-S11023-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : KENSIL WAYNE BOWMAN, JR. : : Appellant : No. 296 WDA 2020

Appeal from the Judgment of Sentence Entered January 6, 2020, in the Court of Common Pleas of Blair County, Criminal Division at No(s): CP-07-CR-0001489-2015.

BEFORE: STABILE, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED: August 2, 2021

Kensil Bowman, Jr. appeals from the judgment of sentence imposing an

aggregate term of 22 to 44 months of incarceration, followed by ten years of

probation and 25 years of sex-offender registration. The trial court convicted

Bowman of distributing child pornography, possessing child pornography, and

criminal use of a communication facility (i.e., his home computer). We affirm.

In 2011, law enforcement became interested in Bowman’s computer,

located inside his Altoona home, for possibly sharing child pornography with

other Internet users. Bowman facilitated these exchanges through a peer-to-

peer software known as eDonkey 2000 (“eD2k”) and eMule. Those programs

allow users to make the files on their devices (including images and videos)

available for other eD2k and eMule users for download. Child pornographers

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* Retired Senior Judge assigned to the Superior Court. J-S11023-21

use common file names to identify their illicit material to each other, such as

“preteen,” “pedo,” and “PTHC.” N.T., 9/9/20, at 21-22. The letters “PTHC”

are an anacronym for “pre-teen hardcore.” Id.

By labeling his files in this way and making them eD2K/eMule accessible,

Bowman created a virtual library of child pornography. He then opened his

virtual library to other peer-to-peer-software users throughout the world and

invited them to copy his files onto their own devices.

A special investigative unit with the Office of the Attorney General of

Pennsylvania accessed Bowman’s child-pornography library via the Internet.

Over the course of two days in March 2015, agents downloaded five pictures

of nude children, three depicting them engaged in sexual acts, directly from

Bowman’s computer. See Commonwealth’s Trial Ex. 1B. The investigators’

software provided them with an IP Address. They then subpoenaed Verizon

Wireless to obtain the identity of the IP Address’s owner. Verizon identified

Bowman as the Internet user associated with that IP Address and gave police

his home address.

Next, the agents obtained a search warrant for Bowman’s home. Their

warrant was for the seizure of all Internet-ready devices, any items that might

store child pornography (such as USB drives), and any hardcopies of child

pornography. When they executed the warrant, Bowman was home. His

computer was on and actively downloading files that were immediately

apparent as child pornography.

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After warning Bowman pursuant to Miranda v. Arizona, 384 U.S. 436

(1966), agents interrogated him. Bowman told them that he used the peer-

to-peer software to download child pornography while downloading other files

such as music, that he printed out images of child pornography, and that he

lived alone. Law enforcement arrested Bowman. They also seized numerous

items from his home, including his computer, data-storage devices, and over

40 printouts of naked children from a locked bathroom in his basement.

Bowman moved to suppress the Commonwealth’s evidence seized under

the search warrant and his statements during the interrogation. The trial court

denied his motions, and the matter proceeded to a bench trial. The court

convicted and sentenced Bowman as described above. This timely appeal

followed.

On appeal, Bowman raises three issues, which we reorder below in light

of this Court’s practice of addressing sufficiency-of-the-evidence claims first

in criminal matters:1

1. Whether the trial court erred in determining there was sufficient evidence to convict [Bowman] of the offenses as charged [because the Commonwealth] failed to prove beyond a reasonable doubt that [Bowman] was the individual who actually downloaded the alleged images of child pornography

1 See Commonwealth v. Toritto, 67 A.3d 29, 33 (Pa. Super. 2013) (en banc) (citing dicta from Commonwealth v. Stokes, 38 A.3d 846 (Pa. Super. 2011) and elevating it into a “best practice” by stating, “Because a successful sufficiency-of-the-evidence claim warrants discharge on the pertinent crime, we must address this issue first.”).

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and that such alleged images of child pornography qualified as child pornography?

2. Whether the trial court erred in denying [Bowman’s] motion to suppress search warrant, as the affidavit of probable cause failed to state adequate probable cause with its four-corners, and, contrary to the law, the trial court considered evidence outside the four- corners in determining probable cause?

3. Whether the trial court erred in denying [Bowman’s] motion to suppress search warrant, as the evidence at the suppression hearings showed [Bowman’s] statement to be involuntary under the totality of the circumstances and the [Commonwealth] did not satisfy its burden of proof relating to such motion?

Bowman’s Brief at 5.

First, Bowman contends there was insufficient evidence to convict him

of the charged offenses. He believes the Commonwealth failed to prove

beyond a reasonable doubt that (1) he was the person who downloaded the

images and videos and (2) those images and videos were child pornography.

Regarding Bowman’s first point, he relies exclusively on his testimony

during the defense’s case-in-chief. Bowman testified that he had downloaded

music and images in bulk from other eD2k and eMule users without checking

to see what types of files he was actually downloading. He also said he printed

out large quantities of images for album covers, in an attempt to explain the

over 40 pictures of child pornography in his locked, basement bathroom. In

other words, he asks this Court to accept his version of events to excuse the

presence of the child pornography within his home, on his computer, and in

his other storage devices as mere repeated accidents.

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For a sufficiency-of-the-evidence claim, “our standard of review is de

novo; however, our scope of review is limited to considering the evidence of

record, and all reasonable inferences arising therefrom, viewed in the light

most favorable to the Commonwealth as the verdict winner.”

Commonwealth v. Rushing, 99 A.3d 416, 420–21 (Pa. 2014).

In Pennsylvania, it is a crime when someone “knowingly . . . distributes

. . . to others, any . . . computer depiction . . . depicting a child under the age

of 18 years engaging in a prohibited sexual act or in the simulation of such

act.” 18 Pa.C.S.A. §6312(c). It is also a crime if one “intentionally views or

knowingly possesses or controls any . . . photograph, film, videotape,

computer depiction . . . depicting a child under the age of 18 years engaging

in a prohibited sexual act or in the simulation of such act . . . .” 18 Pa.C.S.A.

§ 6312(d).

Additionally, a person may not use “a communication facility to commit

. . . any crime which constitutes a felony under this title.” 18 Pa.C.S.A.

§7512(a). A “communication facility” is an “instrumentality used or useful in

the transmission of signs, signals, writing, images, sounds, data, or

intelligence of any nature transmitted, in whole or in part, including, but not

limited to, telephone, wire, radio, electromagnetic, photoelectronic, or photo-

optical systems or the mail.” 18 Pa.C.S.A. § 7512(c). Thus, an Internet-ready

device, such as Bowman’s home computer, is a “communication facility.”

Limiting our review, as we must, to the evidence most favorable to the

Commonwealth, Bowman’s own admissions convict him of the above offenses.

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During the interrogation by the special agents, Bowman confessed to living

alone and to downloading child pornography. He also admitted to searching

for “PTHC.”

The trial court, sitting as the finder of fact, was “free to believe all, part,

or none of the evidence and to determine the credibility of the witnesses.”

Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011) (citation

omitted). Thus, the trial court, as sole judge of the facts, could – and did –

reject the revisionist theory of events that Bowman told on the witness stand

in his own defense. Instead, the trial court found his first rendition to the

agents during his interrogation to be the accurate story of this case.

As the appellate court, we did not hear the testimony and therefore may

not revisit the trial court’s credibility determinations. See Ramtahal, supra.

Bowman’s retelling of events in his appellate brief – in the light most favorable

to himself – is irrelevant on this appeal, because his self-serving review of the

record is outside our scope of review. See Rushing, supra. The trial court

has conclusively deemed his version of events to be false. Thus, Bowman, by

relying exclusively upon those untruths (rather than identify any deficiencies

in the Commonwealth’s case-in-chief), fails to persuade us that there was

insufficient evidence from which the trial court could find beyond a reasonable

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doubt that Bowman knowingly downloaded child pornography and knowingly

possessed it within his home.2

Accordingly, this first issue warrants no relief.

Next, Bowman claims the trial court should have suppressed the child

pornography. The Commonwealth argues that this claim is waived due to the

lack of meaningful development in Bowman’s brief. See Commonwealth’s

Brief at 6. We agree with the Commonwealth.

“The applicability of waiver principles presents a question of law, over

which our standard of review is de novo, and our scope of review is plenary.”

Stapas v. Giant Eagle, Inc., 198 A.3d 1033, 1037 (Pa. 2018).

This Court has said, “When an appellant’s argument is underdeveloped,

we may not supply [him] with a better one. In such situations, we shall not

develop an argument for an appellant, nor shall we scour the record to find

evidence to support an argument; instead, we will deem the issue to be

waived.” Commonwealth v. Pi Delta Psi, Inc., 211 A.3d 875, 884–85 (Pa.

Super. 2019), appeal denied, 221 A.3d 644 (Pa. 2019) (quotation marks and

some punctuation omitted).

Bowman makes no argument to support his claim that the nine-page

affidavit in support of the search warrant lacked probable cause. See

Bowman’s Brief at 11. He simply states that he “disagrees with the trial court’s ____________________________________________

2 Regarding his second point – i.e., that the images and videos are not child

pornography – Bowman makes no argument at all. See id. at 14-15. We therefore dispose of Bowman’s second point as waived. See Pa.R.A.P. 2111, 2119.

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determination that there was adequate probable cause within the four-corners

of the affidavit.” Id. This conclusory statement is insufficient to prompt any

further consideration by this Court. We dismiss Bowman’s four-corners

challenge to the search warrant as waived.

Finally, Bowman seeks the suppression of his post-Miranda-warnings,

inculpatory statements to investigators during the search of his home. Again,

the Commonwealth argues for waiver due to lack of development of this claim

in Bowman’s brief. See Commonwealth’s Brief at 11. Again, we agree.

Bowman claims that, “under the totality of the circumstances, [his]

statements were involuntary.” Id. at 12. He says he never received a copy

of the search warrant and was therefore “in shock at the line of questioning

throughout the interview.” Id. Finally, Bowman states, due to “his state of

shock, duress, and lack of understanding of what was happening, given his

repeated demands to see documentation, his statements were not voluntary.”

Id. at 13. He does not explain why he was in shock or under duress, and

nothing in the record indicates that the suppression court made such findings

of fact.

Also, absent from his argument is any citation to or reliance upon any

Fifth Amendment3 jurisprudence that supports his unsubstantiated claims of

shock or duress. Indeed, this section of Bowman’s argument is devoid of any

authority, other then two citations regarding the Commonwealth’s burden of ____________________________________________

3 The Fifth Amendment provides, “No person shall . . . be compelled in any

criminal case to be a witness against himself . . . .” U.S. Const. amnd. V.

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proof at suppression hearings. See id. at 11-13. This argument therefore

lacks citation to any substantive law, whatsoever.

The Rules of Appellate Procedure require an appellant to include in the

argument sections of his brief “such discussion and citation of authorities

as are deemed pertinent.” Pa.R.A.P. 2119(a) (emphasis added). “Where an

appellant has failed to cite any authority in support of a contention, the claim

is waived.” Collins v. Cooper, 746 A.2d 615, 619 (Pa. Super. 2000). The

lack of citation to substantive law in Bowman’s brief is fatal to this issue.

Bowman’s argument for the suppression of his inculpating statements

is underdeveloped and violates Pa.R.A.P. 2119(a). Therefore, he waived his

last appellate issue, as well. See Pi Delta Psi, Inc. and Cooper, supra.

Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/2/2021

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