Com. v. Brown, H.

• Court: Superior Court of Pennsylvania
• Decided: March 2, 2018
• Docket: 322 EDA 2017
• Status: Unpublished

Opinion

J-S83037-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : HERBERT EARL BROWN : : Appellant : No. 322 EDA 2017

Appeal from the Judgment of Sentence August 11, 2016 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0006607-2015

BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.

MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 02, 2018

Appellant, Herbert Earl Brown, appeals from the judgment of sentence

entered in the Bucks County Court of Common Pleas, following his jury trial

convictions of twenty-four counts of possession of child pornography and

one count of criminal use of communication facility, and bench trial

conviction of failure to comply with registration requirements.1 We affirm

the judgment of sentence in part, vacate the court’s imposition of sexually

violent predator (“SVP”) status, and remand with instructions.

In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them. For purposes of disposition, we add the court ordered ____________________________________________

1 18 Pa.C.S.A. §§ 6312(d), 7512(a), and 4915.1(a)(3), respectively. J-S83037-17

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b) on January 18, 2017, and Appellant timely

complained on January 20, 2017.

Appellant raises the following issues for our review:

WHETHER THE TRIAL COURT ERRED BY DENYING [APPELLANT’S] MOTION TO SUPPRESS THE JULY 13, 2015 SEARCH WARRANT OF THE GALAXY PHONE, WHERE THE INFORMATION FROM THE ANONYMOUS TIP CONTAINED WITHIN THE WARRANT FAILED TO ESTABLISH PROBABLE CAUSE FOR [APPELLANT’S] PHONE TO BE SEIZED AND SEARCHED; WAS BASED ON INSUFFICIENT, ANONYMOUS, UNCORROBORATED, AND/OR UNRELIABLE INFORMATION AND SOURCES TO ESTABLISH PROBABLE CAUSE; AND CONTAINED INSUFFICIENT RELIABILITY OF THE ANONYMOUS TIP TO ESTABLISH PROBABLE CAUSE ON THE FACE OF THE WARRANT[?]

WHETHER THE TRIAL COURT ERRED BY DENYING [APPELLANT’S] MOTION TO SUPPRESS THE SEARCH WARRANT OF THE GALAXY PHONE, WHERE THE WARRANT CONTAINED INCORRECT AND WRONG IDENTIFYING INFORMATION REGARDING THE GALAXY PHONE (S4 VS S3), THE WARRANT WAS DEFECTIVE AND OVER BROAD, THE WRONG PHONE WAS SEIZED AND SEARCHED, AND THE WARRANT FAILED TO IDENTIFY THE CORRECT CELL PHONE OF [APPELLANT] BY THE CORRECT SIM CARD AND STORAGE DEVICE[?]

WHETHER DETECTIVE MATTHEW MOLCHAN OF THE QUAKERTOWN BOROUGH POLICE DEPARTMENT EXCEEDED THE SCOPE OF THE JULY 15, 2015 AND AUGUST 31, 2015 WARRANTS BY ACCESSING AND EXTRACTING THE MEDIA FILES AFTER SEIZING THE PHONES, AND WITHOUT OBTAINING A NEW SEARCH WARRANT TO ACCESS OR EXTRACT THE MEDIA FILES, AS UNDER COMMONWEALTH V. STEM, 96 A.3D 407 (PA.SUPER. 2014) AND RILEY V. CALIFORNIA, [___ U.S. ___, 134 S.CT. 2473, 189 L.ED.2D 430 (2014)?]

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WHETHER THE EVIDENCE WAS SUFFICIENT TO ESTABLISH THAT THE STORAGE DEVICE CONTAINING CHILD PORNOGRAPHY ON THE PHONES SEARCHED AND SEIZED PURSUANT TO THE SEARCH WARRANTS BELONGED TO AND/OR WERE USED BY [APPELLANT], CONTAINED IMAGES DOWNLOADED BY [APPELLANT], AND THE IMAGES OR PHONES WERE IN POSSESSION OF [APPELLANT?]

WHETHER THE TRIAL COURT ERRED IN APPLICATION AND IMPOSITION OF THE LIFETIME MANDATORY SENTENCING PROVISION UNDER 42 [PA.C.S.A. §] 9718.2(A)(2), WHERE [APPELLANT] WAS SENTENCED TO [TWENTY-FOUR] (24) LIFE SENTENCES, INCLUDING THREE (3) CONSECUTIVE LIFE SENTENCES, AND WHERE:

A) THE SENTENCING SCHEME UNDER 42 [PA.C.S.A. §] 9718.2(A)(2) INDICATES A SINGLE TRANSACTION OR OCCURRENCE AS PRIOR OFFENSES IMPLICATING THE MANDATORY, AND REQUIRES ONLY THE IMPOSITION OF ONE MANDATORY SENTENCE;

B) IMPOSITION OF THE LIFETIME MANDATORY UNDER 42 [PA.C.S.A. §] 9718.2(A)(2) VIOLATES THE CRUEL AND UNUSUAL PUNISHMENT PROVISIONS OF THE PENNSYLVANIA CONSTITUTION AND THE 8TH AMENDMENT OF THE UNITED STATES CONSTITUTION[;]

C) IMPOSITION OF THE LIFETIME MANDATORY UNDER 42 [PA.C.S.A. §] 9718.2(A)(2) VIOLATES THE PENNSYLVANIA AND UNITED STATES CONSTITUTIONS AS A DISPROPORTIONAL SENTENCE COMPARED TO THE CHILD PORNOGRAPHY OFFENSES CONVICTED[;]

D) IMPOSITION OF THE LIFETIME MANDATORY UNDER 42 [PA.C.S.A. §] 9718.2(A)(2) VIOLATES THE PENNSYLVANIA AND UNITED STATES CONSTITUTIONS AS IT REQUIRES PROOF BEYOND A REASONABLE DOUBT OF AN ELEMENT OF PRIOR CONVICTIONS WHICH CAN ONLY BE DETERMINED BY A JURY. SPECIFICALLY, 42 [PA.C.S.A. §

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9718.2(C)] VIOLATES ALLEYNE V. UNITED STATES, [570 U.S. 99, 133 S.CT. 2151, 186 L.ED.2D 314 (2013)][;]

E) IMPOSITION OF THE LIFETIME MANDATORY UNDER 42 [PA.C.S.A. §] 9718.2(A)(2) VIOLATES THE PENNSYLVANIA AND UNITED STATES CONSTITUTIONS AS THE PRIOR CONVICTIONS RELIED UPON ARE TOO REMOTE IN TIME TO BE A FACTOR IN IMPOSING THE MANDATORY[;]

F) THE NOTICE REQUIREMENT OF THE LIFETIME MANDATORY SENTENCE IS UNCONSTITUTIONAL, VAGUE, AND FAILS TO PROVIDE THE PETITIONER SUFFICIENT DUE PROCESS AS REQUIRED BY LAW[.]

(Appellant’s Brief at 5-6).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasonable opinion of the Honorable Wallace H.

Bateman, Jr., we conclude Appellant’s issues on appeal merit no relief. The

trial court opinion comprehensively discusses and properly disposes of the

questions presented. (See Trial Court Opinion, filed March 29, 2017, at 11-

27) (finding: (1-3) facts contained in affidavit of probable cause were based

on information obtained from person known to Appellant, who did not have

any convictions for crimen falsi and had firsthand knowledge of Appellant’s

possession of child pornography; reliability of information is bolstered by fact

that informant was able to provide Appellant’s accurate address, phone

number, and cellular provider; further, results of Detective Molchan’s

investigation corroborated facts contained in affidavit of probable cause;

under these circumstances, information contained in affidavit of probable

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cause was sufficient, reliable, and corroborated; additionally, description of

phone was sufficiently particular because affidavit of probable cause

identified exact phone number and brand of phone sought by police; fact

that police seized Galaxy S3 instead of Galaxy S4 named in affidavit of

probable cause is of no consequence because Commonwealth established

that variation between models was minimal; Detective Molchan also called

phone number listed in affidavit of probable cause during execution of

warrant to ensure seizure of correct cellphone; as such, any defect in

affidavit of probable cause was immaterial; Detective Molchan’s inclusion of

incorrect cellphone model was not deliberate inclusion meant to mislead

anyone; even if Detective Molchan had omitted model of cellphone from

affidavit of probable cause, sufficient probable cause still existed to support

seizure of Appellant’s cellphone; finally, Detective Molchan did not exceed

scope of search warrants because record demonstrates he seized and

searched only items described in warrants; further, Appellant relies on

inapplicable case law to support his claim that Detective Molchan exceeded

scope of search warrants; therefore, court properly denied Appellant’s

suppression motion;2 (4) Appellant admitted to police that his cellphone

____________________________________________

2 In the trial court, Appellant solely claimed the court should suppress the evidence seized by police because Detective Molchan seized a Galaxy S3 instead of a Galaxy S4. Significantly, Appellant did not raise his claims that: (1) the anonymous tip was unreliable; (2) the police failed to corroborate the information in the affidavit of probable cause; (3) the search warrant (Footnote Continued Next Page)

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contained images of underage children and he knew possession of such

images at issue was illegal; cellular pings confirmed Appellant’s use of

cellphone during time period when over forty searches for child pornography

occurred on phone; Appellant’s claim that he downloaded images from

nudist organization’s website does not absolve Appellant of liability for

possession of child pornography; Appellant verified with police that cellphone

seized belonged to him; thus, sufficient evidence existed for jury to convict

Appellant of possession of child pornography; (5) Appellant has entered nolo

contendere pleas in four prior cases involving sexual offenses, one in

Michigan and three in Pennsylvania; Michigan case constituted Appellant’s

first strike and Pennsylvania cases constituted Appellant’s second strike

pursuant to Section 9718.2(a)(2); each of Appellant’s current convictions

constitute third strike; contrary to Appellant’s assertion, language of Section

9718.2(a)(2) requires court to impose mandatory life sentences for each of

Appellant’s convictions because each image of child pornography is separate

offense; as such, court properly imposed twenty-four life sentences; with

respect to Appellant’s claim that Section 9718.2(a)(2) constitutes cruel and

unusual punishment, Pennsylvania courts have repeatedly rejected claims

(Footnote Continued) _______________________

was overbroad; or (4) the police exceeded the scope of the warrants by failing to obtain additional warrants to extract information from the devices seized. Thus, these claims are arguably waived on appeal. See Pa.R.A.P. 302(a) (stating: “issues not raised in the [trial] court are waived and cannot be raised for the first time on appeal”).

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that challenge constitutionality of habitual offender statutes; to extent

Appellant claims twenty-four life sentences is disproportionate to crime

committed, this claim fails because court has no discretion under Section

9718.2(a)(2); additionally, Pennsylvania courts have stated

disproportionality claims have no merit when court sentences defendant

under habitual offender statute; with respect to Appellant’s claim that

imposition of mandatory life sentences violated Alleyne, this claim fails

because his prior convictions are legally recognized conclusions which do not

require additional fact finding; Appellant’s Alleyne argument fails to

appreciate that he was found guilty of prior offenses beyond reasonable

doubt; additionally, Appellant would be highly prejudiced if Commonwealth

was required to present evidence of prior convictions to jury; to extent

Appellant argues his prior convictions are too remote in time, Section

9718.2(a)(2) does not cap age of prior convictions eligible for consideration

as prior strikes under habitual offender statute;3 with respect to Appellant’s

challenge to notice he received of Commonwealth’s intent to seek mandatory

minimum under Section 9718.2(a)(2), this claim fails because

Commonwealth provided Appellant notice of intent to seek mandatory

minimum prior to time required by statute; additionally, notice requirements

contained in Section 9718.2(c) are constitutional and demonstrate ____________________________________________

3 Appellant abandons the challenge to his sentence based on the remoteness of his prior convictions in his appellate brief.

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legislature’s intent to satisfy defendant’s due process rights; under these

circumstances, court properly imposed twenty-four (24) mandatory

minimum sentences pursuant to Section 9718.2(a)(2), and Appellant’s

various challenges to his sentence fail). The record supports the court’s

sound reasoning.

Finally, we observe the recent PA Supreme Court decision that held

the registration requirements under SORNA constitute criminal punishment.

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). In light of Muniz,

this Court subsequently held: “[U]nder Apprendi[4] and Alleyne, a factual

finding, such as whether a defendant has a mental abnormality or

personality disorder that makes him…likely to engage in predatory sexually

violent offenses, that increases the length of registration must be found

beyond a reasonable doubt by the chosen fact-finder.” Commonwealth v.

Butler, 173 A.3d 1212, 1217 (Pa.Super. 2017) (internal quotations and

citations omitted). The Butler Court also held: “Section 9799.24(e)(3) of

SORNA violates the federal and state constitutions because it increases the

criminal penalty to which a defendant is exposed without the chosen fact-

finder making the necessary factual findings beyond a reasonable doubt.”

Id. at 1218. The Butler Court concluded that trial courts can no longer

designate convicted defendants as SVPs or hold SVP hearings, “until [the] ____________________________________________

4 Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

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General Assembly enacts a constitutional designation mechanism.” Id.

Instantly, the court imposed SVP status on Appellant on 8/11/16.

Appellant filed a post-sentence motion on 8/19/16, which the court denied

by operation of law on 1/4/17. Appellant timely filed a notice of appeal on

1/13/17. While Appellant’s appeal was pending, our Supreme Court decided

Muniz on July 19, 2017, that held the registration requirements under

SORNA constitute criminal punishment; and this Court decided Butler on

10/31/17, which deemed unconstitutional the current mechanism for

imposition of SVP status, as used in the present case, and stated trial courts

cannot impose SVP status in that manner. See Muniz, supra; Butler,

supra. In light of Muniz and Butler, Appellant’s SVP status constitutes an

illegal sentence, which we can review sua sponte. See Commonwealth v.

Randal, 837 A.2d 1211, 1214 (Pa.Super. 2003) (en banc) (restating general

rule that we can review illegal sentence sua sponte). Therefore, we vacate

Appellant’s SVP status and remand the case to the trial court to issue a

revised notice to Appellant pursuant to 42 Pa.C.S.A. § 9799.23 (governing

reporting requirements for sex offenders). Accordingly, we affirm the

judgment of sentence in part but vacate the court’s imposition of SVP status

and remand with instructions.

Judgment of sentence affirmed in part; SVP designation vacated; case

remanded with instructions. Jurisdiction is relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/2/18

- 10 - .... ,..-. Circulated 02/05/2018 01:59 PM

IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA CRIMINAL DIVISION·

COMMONWEALTH OF PENNSYLVANIA CP-09-CR-0006607-2015

v.

HERBERT BROWN

OPINION Defendant Herbert Brown (hereinafter "Appellant"), appeals this Court's ruling on the

suppression of evidence and challenges the legality of the imposed sentence. We file this

Opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).

PROCEDURAL HISTORY

Prior to the case at bar, in 1994, Appellant pied nolo contendre to Criminal Sexual

Conduct in the Second Degree, in Michigan.1 See CS-3, CS-4 of 8/11/16. In the year 2000,

Appellant pied nolo contendre to Criminal Solicitation2, Corruption ofMinors3, and Criminal

Attempt4•5 In a subsequent case on the same year, Appellant plednolo contendre to two counts of

Rape6, two counts of Sratutory Sexual Assault", six counts of Aggravated Indecent Assault", six

counts oflndecent Assault", and two counts of Corruption of Minors'P.'! Finally, in the year

.. , ) ·_,

I Case #94-004668-FH, The People vs Herbert Brown. __;_) 2 18 Pa.C.S.A. § 902(a)(2). 3 18 Pa.C.S.A. § 6301. ·.,-�··-·.'i.'/ u -r "�f

4 18 Pa.C.S.A. § 901. 5 CP-09-CR-0004339-2000. . . ... ··� -; -.. ,\t l 6 18 Pa.C.S.A. § 3121. w 7 18 Pa.C.S.A. § 3122. 8 18 Pa.C.S.A. § 3125(1), (2) & (8). 9 18 Pa.C.S.A. § 3126(aXl), (2) & (8). 10 18 Pa.C.S.A. § 6301.

II CP-09-CR-0005688-2000. 2001, Appellant pled nolo contendre to one count of Criminal Mischief= and Corruption of

Minors+'."

In the instant case, Appellant was arrested by Quakertown Borough Police Department

on August, 27, 2015, on two (2) counts of Failure to Provide Accurate Registration

Information 15, two (2) counts of Criminal Use of a Communication Facility16, and one hundred

seventy ( 170) counts of Child Pomography17• This Court bifurcated the criminal information into

two trials so as not to prejudice Appellant on the Failure to Provide Accurate Registration

Information count. Prior to trial, the Commonwealth amended the criminal information to only

one (1) count of Failure to Provide Accurate Registration Information, one (1) count of Criminal

Use of a Communication Facility, and eighty-five (85) counts of Child Pornography. Finally, the

Commonwealth nolle prossed sixty-one (61) counts of Child Pornography before trial.

During a pre-trial motions hearing, the Appellant argued the July 15, 2015, search

warrant was defective and the remainder of the Commonwealth's physical evidence was fruit of

that defective warrant.18 Appellant argued the warrant to seize Appellant's cell phone, was

defective in that it identified the seizure of a "Samsung Galaxy S4" but law enforcement seized a

"Samsung Galaxy 83."19 This Court denied Appellant's motion to suppress, ruled the affidavit of

probable cause was sufficient to obtain a warrant, and the warrant adequately described the item

12 18 Pa.C.S.A. § 3304(a)(l). 13 18 Pa.C.S.A. § 6301. 14 CP-09-CR-0000683-2001. is 18 Pa.C.S.A. § 4915.l(a)(3). 16 18 Pa.C.S.A. § 7512(a). 17 18 Pa.C.S.A. § 6312(d). 18 Appellant preserved this argument throughout trial. 19 Photos entered into evidence at the Suppression Hearing showed little difference in comparison of a Samsung

Galaxy S3 verses a Samsung Galaxy S4 from both a profile and frontal view.� CS-7 and CS-8 of3/14/16; N.T. 3/14/16, p. 34-35.

2 to be seized at the address provided. N.T. 3/14/16, pp. 8-11; see g_enerally CS-5 and CS-6 of

3/14/16.

The July 15, 2015, search warrant in question identified the specific item to be seized as:

"Galaxy S4, T-Mobile Cellular Phone with phone# 267-221-5851 with a black case, belonging to

Herbert Brown of 108 S. Hellertown Ave. Apt H Quakertown, PA. 18951." See CS-6 of 3/14/16;

N.T. 3/14/16, pp. 27-28. The warrant identified the items to be searched as

[c]ellular telephone contents, including but not limited to: the SIM card, internal and external memory and any removable memory storage, voice communications, inbound and outbound calls, text or SMS communications sent and received, contact list information, photographs sent and received, saved and deleted photographs and any communications made through software applications on the cellular telephone.

See CS-6 of3/14/16; N.T. 3/14/16, pp. 27-28. The affidavit of probable cause for the July 15,

20 l 5, search warrant reads as follows, in pertinent part:

On Wednesday, July 1, 2015 at 1206 hours a concerned citizen sent an anonymous top to the Pennsylvania State Police, Megan's Law Public Website. The anonymous top was forwarded to the Quakertown Borough Police Department on Monday, July 5, 2015 at 0930 hours. The tip was sent via email from a concerned citizen in reference to Herbert Brown who is an active, Tier 3 sexual offender who had child pornography on his phone. The concerned citizen wishes to remain anonymous and has no crimen falsi convictions.

The concerned citizen citizen [sic] is known to Herbert Brown and was able to access Brown's cell phone, Galaxy S4 T-Mobile phone, cell phone #267-221- 5851 during the week of June, [sic] 21, 2015. The concerned citizen was able to look in Brown's phone and while looking in the phone saw five photographs of little naked girls. The pictures on Brown's phone were of frontal nudity of pre- pubescent juvenile females with an approximate age of ten years old. The photographs depicted different naked girls who were standing.

Your affiant verified through Acurint that cell number 267-221-5851 belonged to Herbert Brown. The phone company registered to the phone was verified to be T- . Mobile USA.

Based on my training, experience and knowledge, your affiant is aware that cell phones can be utilized by persons to engage in criminal activity ... Persons who use cellular telephones tend to retain their personal files and data for extended

3 periods of time even if a person has replaced, traded in or "upgraded" to a new cellular telephone. Your affiant knows cellular telephone users routinely transfer most of their data onto their new cellular telephone when making an upgrade ... Wherefore, your Affiant believes that probable cause exists to believe that violations of Title 18, specifically relating to Sexual Abuse Of Children (Child Pornography), as well as Criminal Use of a Communication Facility, were committed and information and evidence associated with those crimes is present in the Galaxy S4 cellular telephone.

See CS-6 of 3/14/16; N.T. 3/14/16, pp. 27-28. The description of what the Detective seized

reads: "Samsung Galaxy S III, white - cell# 267 221-5851." See CS-6 of3/14/16; N.T. 3/14/16,

pp. 27-28. Based on the record and evidence presented at the Suppression Hearing, this Court

found the following:

I. Det. Molchan was a credible witness. N.T. 3/15/16, p. 11.

2. Pennsylvania State Police received three tips about the Appellant through the Megan's

Law Hotline. N.T. 3/15/16, p. 4.

3. One of the tipsters was known to Appellant and possessed firsthand knowledge of the

child pornography on Appellant's phone after viewing the images herself. N.T. 3/15/16,

p.4.

4. The tipster with firsthand knowledge of cellular telephone's (hereinafter "cell phone")

contents had no crimen falsi convictions. N.T. 3/15/16, p. 5.

5. The phone to be seized was described as a Galaxy 84 T-Mobile cellular telephone phone

with a phone number of (267) 221-5851. N.T. 3/15/16, p. 5.

6. Det. Molchan confirmed the number (267) 221-5851 belonged to Appellant and the

phone company registered to the phone was verified as TMobile. N.T. 3/15/16, p. 5.

7. The item seized was a Galaxy S3 cellular telephone registered with T-Mobile, and the

same phone number as listed on the warrant: (267) 221-5851. N.T. 3/15/16, p. 6.

4 8. The physical difference between a Galaxy S3 verses a Galaxy S4 is not readily apparent.

N.T. 3/15/16, p. 7.

9. This Court found that the affidavit of probable cause was adequate, the seizure of the

Appellant's phone was lawful, and the resulting evidence obtained from the phone was

admissible at trial. N.T. 3/15/16, p. 8. This Court further held that if an error did occur as

to the seizure of a Galaxy 83 verses S4, "the error was minimal and was based upon

information the police officer had after a reasonable investigation and that he reasonably

believed it to be accurate." Therefore, whether a de minimis error existed or not, the

Court's admissibility ruling remained the same. N.T. 3/15/16, p. 8.

One month later, law enforcement sought another warrant. The application for search

warrant and authorization for August 15, 2015, was for Appellant's new phone. See CS-9 of

3/14/16. The application described Appellant's new phone as "HTC Cellular Phone with phone#

267-221-5851 with a black case (audi [sic] Logo), belonging to Herbert Brown of 108 S.

Hellertown Ave. Apt H Quakertown PA [sic] 18951." See CS-9 of 3/14/16. The evidence seized

was admitted.

The third search warrant in this case was for Appellant's lap top. The application for

search warrant and authorization for August 31, 2015, identified the items to be searched for and

seized as "[t]he hard drive, and any other non-removable and removable storage of a laptop

computer unit for child pornography material or related obscene material to include, but not

limited to files, phots, videos and or computer directories, depicting a child under the age of 18

engaged in sexual acts." See CS-10 of3/14/16. The evidence seized was admitted.

After a trial beginning on April 11, 2016, the jury found Appellant guilty of Criminal Use

of a Communication Facility and twenty-four (24) counts of child pornography. N.T. 4/13/16,

5 pp. 103-07. The subsequent bench trial on July 19, 2016, resulted in another conviction for

Failure to Provide Accurate Registration lnfonnation. N.T. 7/19/16, p. 19. In the interim of

conviction and sentence, Appellant was deemed a sexually violent predator. N.T. 8/11/16, p. 3.

The Court sentenced Appellant to serve not less than ten (10) years, nor more than twenty

(20) years, confinement in a State Correctional Institution on Count one (1 ), Failure to Provide

Accurate Registration Information. N.T. 8/11/16, pp. 63-64. As a three strike offender'",

Appellant was sentenced to three (3) consecutive life sentences and twenty-one (21) concurrent

life sentences: two (2) consecutive life sentences for Counts two (2) and three (3), Child

Pornography, to be served concurrently with Count one (1); the remaining twenty-two (22) Child

Pornography counts earned Appellant twenty-two (22) life sentences served concurrently with

each other but consecutive to the sentence imposed on Count three (3). N.T. 8/11/16, p. 64.

Appellant received no penalty on Count eighty-seven (87), Criminal Use of a Communication

Facility. N.T. 8/11/16, pp. 64-65.

Following this Court's imposition of sentence, Appellant filed a timely Motion for

Reconsideration of Sentence on August 19, 2016. This Court held a hearing on Appellant's post-

trial motions on October 27, 2016. This Court placed Appellant's post-trial motions under

advisement until January 4, 2017, whereupon this Court entered an Order dismissing Appellant's

motions.21 Appellant filed a timely Notice of Appeal to the Superior Court on January 13, 2017.

FACTUAL BACKGROUND

20 Strike one: Appellant pied nolo contendre on a Michigan case,# 94-004668-FH, The PeQPle vs Herbert Brown; strike two: Appellant pied nolo contendre in CP-09-CR-0005688-2000, CP-09-CR-0000683-2001, and CP-09-CR- 0004339-2001. Infra Section III. 21 Appellant was ordered to produce a brief presenting his argument within twenty (20) days of this hearing, and the Commonwealth would have ten (10) days thereafter to file a brief in opposition- as of the date of this Order, Appellant's Counsel had not filed a brief.� Bucks County Criminal Court Sheet, October 28, 2016. 6 Appellant kept illicit sexual images of underage children on his cell phone. N.T. 4/12/16,

pp. 10-11; N.T. 4/11/16, p. 115. Appellant argued someone else must have downloaded and

searched the illicit images on his phone. N.T. 4/12/16, pp. 134-35.22 Contrary to Appellant's

claim, testimony revealed Appellant habitually kept his phone nearby and under his exclusive

control. N.T. 4/11/16, pp. 126-28, 173-74.

Appellant worked at Total Molding Services when Appellant's work supervisor, Robert

Rambo, saw pictures on Appellant's phone of girls estimated to be between ten ( 10) to twelve

(12) years old, in sexual positions and with limited to no clothing on. N.T. 4/12/16, pp. 9-11;

N.T. 4/13/16, pp. 125-26. Mr. Rambo witnessed Appellant using Facebook on his phone. N.T.

4/12/16, p. 11. After Mr. Rambo discovered Appellant viewing these illicit photos, Mr. Rambo

informed his manager, and together they called law enforcement. N.T. 4/12/16, p. 11.

Appellant used the social media company, Facebook, to contact a former victim whom he

raped while she was a pre-teen. N.T. 4/12/16, p. 28; N.T. 3/15/16, p. 11. Appellant tattooed her

name on his arm when the victim was eleven (11) years old. N.T. 4/12/16, p. 29. Appellant

messaged the victim, provided his cell phone number to the victim, and copied photos of the

victim onto his Facebook account. N.T. 4/12/16, pp. 30-31.

Kim Levenick, Appellant's live-in-girlfriend, contacted Quakertown Borough Police

Department to report the child pornography she discovered on Appellant's cell phone. N.T.

4/11/16, pp. 123, 126, 130; N.T. 4/12/16, p. 35. Ms. Levenick described the children as ten (10)

to twelve (12) year-old girls. N.T. 4/11/16, p. 130. Ms. Levenick provided Appellant's cell phone

number, (267) 221-5851. N.T. 4/12/16, pp. 35, 134. Appellant provided the same cell phone

22Since Appellant testified, his crimen falsi convictions were admissible for the jury to consider with regard to Appellant's truthfulness while on the stand. Appellant' convictions include: CP-09-CR-0002328-2012 for forgery, theft by unlawful taking, theft by deception and receiving stolen property; and CP-09-CR-0001684-20 lS for fraud and obtaining food stamps for assistance.

7 number to his past victim via Facebook. N.T. 4/16/16, p. 30. Ms. Levenick told law enforcement

that Appellant's phone was a Samsung Galaxy 83. N.T. 4/12/16, p. 35. Ms. Levenick wanted to

remain an anonymous tipster in fear of Appellant's retaliation. N.T. 4/11/16, p. 132; N.T.

4/12/16, p. 35.

Detective Molchan of the Quakertown Borough Police Department received Ms.

Levenick's tip. Det. Molchan verified the tip to confirm whether the phone number provided was

registered to Appellant and at Appellant's address as provided by the tipster. N.T. 4/12/16, p. 36.

After corroborating the tip, Det. Molchan obtained a warrant for Appellant's cell phone largely

on the basis of Ms. Levenick's information. N.T. 4/12/16, p. 36. Det. Molchan executed the

search warrant while Appellant was present and at his home on July 13, 2015. N.T. 4/11/16, p.

134.

Appellant took Ms. Levenick's phone, against her will, misrepresented Ms. Levenick's

phone as his own. N.T. 4/11/16, pp. 134-36; N.T. 4/12/16, p. 43. Appellant abandoned his ruse

and retrieved his phone only after Det. Molchan stated he was going to call Appellant's phone.

N.T. 4/12/16, pp. 44-45. Det. Molchan collected the phone with the same number as provided in

the tip and the warrant. N.T. 4/12/16, pp. 45-46. Appellant admitted to Det. Molchan that the

phone seized was Appellant's. N.T. 4/12/16, p. 46. Ms. Levenick also confirmed that the seized

phone belonged to Appellant and was the same device she discovered child pornography on.

N.T. 4/12/16, p. 46.

Hours later, the Quakertown Borough Police Department dispatched Officer Hawk to

Appellant's home because Appellant attempted to overdose on 5 milligrams Percocet and other

medications. N.T. 4/12/16, pp. 101, 167-68. Appellant told the officer on scene that he was upset

over the seizure of his cell phone earlier in the day. N.T. 4/12/16, p. 102. Appellant admitted to

8 having pictures of naked children on his phone. N.T. 4/12/16, p. 103. Appellant admitted the

photos were illegal. N.T. 4/12/16, p. 103. Appellant explained he possessed the photos as part of

a scheme to earn $200 ifhe provided the images to an incarcerated individual. N.T. 4/12/16, p.

103. Appellant did not provide the alleged recipient's name. N.T. 4/12/16, p. 103.

Det. Molchan reviewed the contents of Appellant's seized phone and discovered over 100

images of children in inappropriate positions. N.T. 4/12/16, pp. 49-50. Some photographs

depicted entirely nude children confirmed to be as young as eight years old. N.T. 4/12/16, pp.

49-50, 114. Some of the images on the seized phone depicted children involved in sexual acts.

N.T. 4/12/16, p. 114. The data dump of the seized phone showed the phone's operator searched

for child pornography online. N.T. 4/12/16, pp. 75-78.23

On July 13, 2015, Appellant worked at Koller Concrete located at 900 Marshall Street in

Bethlehem, Pennsylvania, from 6:13 a.m. to 3:10 p.m. along with his cell phone. N.T. 4/12/16,

pp. 66-72. The closest cell tower, located in Pembroke, pinged Appellant's cell phone from

1,440 feet away. N.T. 4/12/16, p. 68-69. While at work that day, a call was placed to Appellant's

girlfriend from Appellant's cell phone. N.T. 4/12/16, p. 73. Between the hours of 10:24 a.m. and

11 :37 a.m., more than forty (40) searches for child pornography were made on Appellant's

phone. N.T. 4/12/16, pp. 74-78.

Appellant was arrested on August 27, 2015. After his arrest, Appellant told Det. Molchan

that the search warrant was for a Samsung Galaxy S4 not a Samsung Galaxy S3, as was seized.

N.T. 4/12/16, pp. 98-99.24 Appellant also attempted to justify the images on his phone as part of

a nudist organization that he participated in. N.T. 4/12/16, pp. 149, 175.

23 To avoid belaboring the point, only a few examples of the fifty child pornography searches discussed at trial are as follows: "biggest taboo small raped teens," "the hottest naked teen X babes dump," and "little girls homey." 24 Appellant claims he noticed the misidentification in the warrant on the day of execution but he did not make law enforcement aware of the issue until his arrest forty-five (45) days later.

9 After law enforcement seized Appellant's phone, he purchased a new phone and

continued to use it for child pornography. N.T. 4/11/16, p. 137; N.T. 4/12/16, p. 84. Det.

Molchan secured another search warrant for the new phone, which had the same number as the

previous phone. N.T. 4/12/16, pp. 83, 171.

STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

On January 18, 2016, this Court issued an Order pursuant to Pa.R.A.P. § 1925(b)

requiring Appellant to file a Concise Statement of Errors Complained of on Appeal no later than

twenty-one (21) days after entry of the Order. Appellant filed such a Statement on January 20,

2016, which raised the following issues, verbatim:

1. Whether the trail court erred by denying the Defendant's Motion to Suppress the July 13, 2015 [sic] search warrant of the Galaxy phone, where the information from the anonymous tip contained within the warrant failed to establish probable cause for the Defendant's phone to be seized and searched; was based on insufficient, anonymous, uncorroborated, and/or unreliable information and sources to establish probable cause; and contained insufficient reliability of the anonymous tip to establish probable cause on the face of the warrant.

2. Whether the trial court erred by denying the Defendant's Motion to Suppress the search warrant of the Galaxy phone, where the warrant contained incorrect and wrong identifying information regarding the Galaxy phone (S4 vs S3), the warrant was defective and over broad, the wrong phone was seized and searched, and the warrant failed to identify the correct cell phone of the Defendant by the correct SIM card and storage device.

3. Whether Detective Matthew Molchan of the Quakertown Borough Police Department exceeded the scope of the July 15, 2015 and August 31, 2015 warrants by accessing and extracting the media files after seizing the phones, and without obtaining a new search warrant to access or extract the media files, as under Commonwealth v. Stem, 96 A.3d 407 (Pa. Super. 2014) and Riley v. California.

4. Whether the evidence was sufficient to establish that the storage device containing child pornography on the phones searched and seized pursuant to the search warrants belonged to and/or were used by Defendant, contained images downloaded by the Defendant, and the images or phones were in possession of the Defendant.

5. Whether the trial court erred in the application and imposition of the Lifetime Mandatory sentencing provision under 42 PaCSA 9718.2(a)(2), where the Defendant was sentenced

10 to twenty five (25) Life sentences, including Three (3) consecutive Life Sentences, and where:

a) The sentencing scheme under 42 PaCSA 9718.2(a)(2) indicates a single transaction or occurrence as prior offenses implicating the mandatory, and requires only the imposition of ONE mandatory sentence; b) Imposition of the lifetime mandatory under 42 PaCSA 9718.2(a)(2) violates the Cruel and Unusual punishment provisions of the Pennsylvania Constitution and the gth amendment of the United States Constitution. c) Imposition of the lifetime mandatory under 42 PaCSA 9718.2(a)(2) violates the Pennsylvania and United States Constitutions as a disproportional sentence compared to the child pornography offenses convicted. d) Imposition of the lifetime mandatory under 42 PaCSA 9718.2(a)(2) violates the Pennsylvania and United States Constitutions as it requires proof beyond a reasonable doubt of an element of prior convictions which can only be determined by a jury. Specifically, 42 PaCSA 9718.2(a)(2) violates Alleyne vs United States. e) Imposition of the lifetime mandatory under 42 PaCSA 9718.2(a)(2) violates the Pennsylvania and United States Constitutions as the prior convictions relied upon are too remote in time to be a factor in imposing the mandatory. f) The Notice requirement of the lifetime mandatory sentence is unconstitutional, vague, and fails to provide the Petitioner sufficient due process as required by law;

ANALYSIS

Disposing of any procedural issue, Appellant has complied with Pa.R.C.P.

720(A)(2)(a).25

I. The Search Warrants were Supported by an Adequate Finding of Probable Cause, they were Properly Executed, and Adequately Described the Items to be Seized.

The Pennsylvania Supreme Court's standard of review for reviewing a challenge to a trial

court's denial of a suppression motion is well-settled as follows:

Our standard of review in addressing a challenge to a trial court's denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Since the prosecution prevailed in the suppression court, we may consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the factual findings of the trial court, we are

25This Court took Appellant's timely post-trial motions under advisement until January 4, 2017, whereupon this Court entered an Order dismissing Appellant's motions. Appellant filed a Notice of Appeal to the Superior Court on January 13, 2017. This filing is within the thirty (30) days allotted under Rule 720(A)(2)(a).

11 bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Bomar, 826 A.2d 831, 842 (Pa. 2003) (citations omitted). Therefore, appellate

review of a suppression order "is limited to determining whether the record as a whole supports

the suppression court's factual findings and whether the legal conclusions drawn from such

findings are free of error. 11 Commonwealth v. Wiley, 858 A.2d 1191, 1193 (Pa. Super. 2004).

To secure a valid search warrant under the Fourth Amendment to the United States

Constitution and Article I, Section 8 of the Pennsylvania Constitution, the affiant must provide a

magistrate with enough information to persuade a reasonable person that probable cause exists to

execute a search. Commonwealth v. D'Angelo, 263 A.2d 441, 444 (Pa. 1970).

a. Law Enforcement Demonstrated Sufficient Probable Cause on the July 15, 2015, Search Warrant

The courts must view affidavits of probable cause through a common sense and

nontechnical lens. Pa.R.Crim.P. 205; Commonwealth v. Council, 421 A.2d 623, 627-628 (Pa.

1980) (citing United States v. Ventresca, 380 U.S. 102, 108 (1965); Commonwealth v. Murphy,

795 A.2d 997, 1006 (Pa. Super. 2002) (citing Commonwealth v. Clark, 602 A.2d 1323, 1325 (Pa.

Super. 1992) (plurality)). The totality of the circumstances test determines whether probable

cause exists for a search warrant. Commonwealth v. Grey, 503 A.2d 921 (Pa. 1985) (adopting

the test set forth in Illinois v. Gates, 462 U.S. 213 (1983)).

Appellant argues the tip was not reliable and the information in the affidavit did not

establish probable cause. Appellant claims the warrant was based on "insufficient, anonymous,

uncorroborated, and/or unreliable information and sources. This Court disagrees with

Appellant's assertion. As we note from the suppression hearing, the facts presented and

corroborated by Det. Molchan thoroughly establish probable cause.

12 The affidavit of probable cause cites a strong source for the information- a person·

known to the Appellant, with firsthand knowledge of Appellant's child pornography, and no

convictions for crimen falsi. The reliability of the tip is bolstered by the fact that the tipster could

accurately provide the address, telephone number, and cellular provider of Appellant.

Furthermore, all of the identifying information reported by the tipster was corroborated through

Det. Molchan's own investigation.

To suggest that the tipster was anonymous and uncorroborated is incorrect - though their

name was not mentioned in the affidavit of probable cause, the pertinent facts about the tipster

are mentioned - he or she knew the Appellant, identification information about Appellant was

corroborated after Det. Molchan's investigation, and he or she had no conviction for crimen falsi.

The instant case differs from that of an entirely anonymous tipster in which law enforcement

cannot corroborate the tipster's information or weigh their credibility. )

The factual determinations made by this Court, when viewed in the totality of the

circumstances, led to the conclusion that a reasonable person would be convinced probable cause

existed to seize Appellant cell phone. The record as a whole supports this legal conclusion.

b. The July 15, 2015, Warrant Described the Items to be Seized with Sufficient Particularity

Similar to a finding of probable cause, a "practical, common sense" approach should be

taken in determining whether the place to be searched is specified with sufficient particularity.

Commonwealth v. Carlisle, 534 A.2d 469, 472 (Pa. 1987). See Commonwealth v. Irvin, 134

A.3d 67, 74-75 (Pa. Super. 2016) (holding, inter alia, an incorrect name and date of a trash pull

on an affidavit of probable cause does not offend the finding of probable cause nor the

particularity requirement).

13 Aside from the incontrovertibly reliable tip, the description of the phone to be seized was

especially specific in that it identified the exact telephone number and type of the phone.

Although the actual phone seized was a different version, the variation between the look of an 83

verses an S4 is minimal so as to understandably render them indistinguishable. In addition, Det.

Molchan called the number in the search warrant to verify he seized the correct phone.

As a practical, common sense matter, Appellant's suggestion that four correct identifying

features (Samsung Galaxy, I-Mobile provider, registered to Appellant at Appellant's address,

correct phone number) of a cell phone make a warrant "defective and over broad" is irrational.

Common sense dictates the facts set forth in the affidavit were specific enough to identify the

correct item to be seized. Common sense also suggests that since law enforcement seized the

phone they sought in the search warrant in a concentrated search, the description of the device

was sufficiently particular. The record as a whole supports this Court's finding.

c. Any Mistake by Law Enforcement was Immaterial to the Probable Cause Determination

Though federal jurisprudence provides a good faith exception to the exclusionary rule,

Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991) declined to adopt that exception.

However, Pennsylvania does allow for good faith immaterial defects in a warrant without

triggering the exclusionary rule. Commonwealth v. Baker, 24 AJd 1006 (Pa. Super. 2011) (aff'd

by 78 A.3d 1044); see M.,. Commonwealth v. Scavincky, 359 A.2d 449, 452 (Pa. Super. 1976);

see also Commonwealth v. Murphy, 795 A.2d 997, 1006 (Pa. Super. 2002) (citing

Commonwealth v. Clark, 602 A.2d 1323, 1325 (Pa. Super. 1992)). If a search warrant is based

on an affidavit which contains a knowingly misleading material fact, the search warrant is

invalid. D' Angelo, 263 A.2d at 441; Clark, 602 A.2d at 1325 ([i]f a search warrant is based on an

affidavit containing deliberate or knowing misstatements of material fact, the search warrant is

14 invalid."). "A material fact is one without which probable cause to search would not exist."

Baker, 24 A.3d at 1018 (Pa. Super. 2011) (quoting Commonwealth v. Zimmerman, 422 A.2d

1119, 1124 (Pa. Super. 1980). The lower court determines the deliberateness of a misstatement in

a search warrant. Commonwealth v. Williams, 345 A.2d 267, 270 (Pa. Super. 1975).

The July 15, 2015, search warrant was not defective due to any minor inaccuracies in the

affidavit of probable cause for two reasons: the version of the Samsung Galaxy was not a

material fact; and the inaccuracy in the search warrant was not a knowingly misleading

inclusion. Whether Appellant's phone was an S3 or S4, does not negate probable cause, therefore

as the Baker court noted, that is not a material fact. The inaccuracy was not known to Det.

Molchan and by logical extension could not be deliberate - the description of the phone came

from the tipster.

If the affidavit of probable cause omitted the type of Samsung Galaxy sought, probable

cause would still exist. The search warrant adequately identified Appellant's phone and the

language used in the affidavit of probable cause was sufficient to result in the seizure of

Appellant's phone. Though the tipster gave an incorrect version of the Samsung Galaxy, which

was the only inaccurate identifying feature she reported, she proved her credibility and reliability

in providing several other accurate identifying features. The record as a whole supports this

conclusion.

d, Det. Molchan did not Exceed the Scope of Either Search Warrant

Appellant also contends the Det. Molchan exceeded the scope of the July 15, 2015, and

August 31, 2015, warrants. Regarding the July 15, 2015, search warrant, Det. Molchan did not

exceed the scope of the warrant as it states the items seized on the face of it: "the SIM card,

internal and external memory and any removable memory storage ... photographs sent and

15 received, saved and deleted photographs ... " Regarding the August 31, 2015, warrant, the face

of the warrant states the Commonwealth is seeking images of child pornography on Appellant's

computer and that's exactly what they extracted. The record as a whole supports this Court's

Appellant supports his proposition with Commonwealth v. Stem, 94 AJd 407 (Pa. Super.

2014) and Riley v. California, 134 S.Ct. 2473 (2014). Both of those cases are distinct as a matter

of law and fact from the instant case. Stem and Riley concern a warrantless search that assumed

authority to search incident to arrest. See Riley, 134 S.Ct. at 2482-83; see also Stem, 94 A.3d at

410-11. In Stem and Riley, the courts took issue with the warrantless search of a cell phone

because the two purposes allowing search incident to arrest espoused in Chimmel v. California,

395 U.S. 752 (1969) are not present with regard to cell phones - safety and preservation of

evidence. These cases are off base in that Appellant's phone and computer images were accessed

via lawful search warrants.

II. Sufficient Evidence was Available at Trial to Prove Appellant Acquired the Child Pornography on Devices Owned and Possessed by Appellant.

The Pennsylvania Supreme Court clearly articulates the standard of review judging the

sufficiency of the evidence at the trial level: "[after] viewing the evidence in a light most

favorable to the Commonwealth as the verdict winner and drawing the proper inferences

favorable to the Commonwealth, the trier of fact could reasonably have found that all the

elements of the crime were established beyond a reasonable doubt." Commonwealth v. Williams,

650 A.2d 420, 424 (Pa. 1994); Commonwealth v. Hagan, 654 A.2d 541, 543 (Pa. 1995); see

Commonwealth v. Heberling, 678 A.2d 794, 795 (Pa. Super. 1996).

Section 6312(d), which Appellant was convicted of violating, provides in relevant part:

16 Any person who 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)(l) (emphasis added). Accessing and viewing child pornography over the

internet constitutes "control" of the pornography under 18 Pa.C.S.A. § 6312(d). Commonwealth

v. Diodoro, 970 A.2d 1100, 1108 (Pa. 2009). A single intentional search, intentional viewing, or

the mere knowledge that child pornography exists on one's hard drive, is sufficient to

demonstrate knowing control or possession of child pornography under 18 Pa. C. S .A. 6312(d).

Diodoro, 970 A.2d at 1106-07.

Appellant claims the evidence presented at trial was insufficient to prove that he was the

person who downloaded or searched for child pornography each time a new picture or search

was found on his cell phone. Appellant's claim stands contrary to the facts and his own

admissions.

Appellant admits to Officer Hawk that the pictures on his phone were of underage

children and that he knew the images were illegal. N.T. 4/12/16, p. 103. For an hour long period

on July 13, 2015, Appellant's time card puts him at work, a nearby cell tower pings his phone in

the same area, and the phone is used to call Appellant's girlfriend. N.T. 4/12/16, pp. 66-73. This

is enough to infer Appellant was using his cellphone during the same period, during which, over

forty (40) searches for child pornography occurred on Appellant's phone. N.T. 4/12/16, pp. 74-

78. Appellant also tries to explain away the images on his phone as images from a nudist

organization he belonged to - a claim that, even if it were true, does not absolve Appellant of

liability for child pornography. N.T. 4/12/16, pp. 149, 175.

Furthermore, the Supreme Court of Pennsylvania recognizes that the mere knowledge of

child pornography on a hard drive satisfies 18 Pa.C.S.A. 6312(d)- the child pornography statute

17 Appellant was found guilty of violating twenty-four (24) times. Diodoro, 970 A.2d at 1106-07.

Appellant does not challenge whether he knew of the images on his phone, just that he did not

actively seek them out. Therefore, in consideration of the precedent set in biodoro, Appellant

should have been and was properly convicted of violating 18 Pa.C.S.A. § 6312(d).

Appellant also seems to challenge whether Appellant was in possession of the phone that

contained child pornography. Again, this claim directly contradicts the evidence. Appellant

retrieved the phone himself and represented that phone as his. N.T. 4/12/16, p. 46. Appellant

admitted to Officer Hawk that the phone seized by Detective Molchan was his. N.T. 4/12/16, p.

102. The telephone number for the seized phone matched the phone number that was registered

to Appellant. N.T. 4/12/16, pp. 45-46. Appellant gave the same phone number out for others to

contact him. N.T. 4/16/16, p. 30. Appellant was observed using the same phone at home. N.T.

4/11/16, pp. 125, 127-29.

The evidence proving Appellant's possession, use, and acquisition of child pornography

was overwhelming arid when viewed in a light most favorable to the Commonwealth. The trier

of fact correctly found that all the elements of the crime were present. The jury is free to believe

all, part, or none of the testimony at trial. Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa.

Super. 2009) (citing Commonwealth v. Griscavage, 517 A.2d 1256 (Pa. 1986)).

Clearly, the jury rejected Appellant's excuses or version of events and it is well settled that the

Court cannot substitute its judgment for that of the trier of fact. Commonwealth v. Holley, 945

A.2d 241, 246 (Pa. Super. 2008).h

III. Appellant's Sentence is Legal and Mandated Under 42 Pa.C.S.A. 9718.2(a)(2)

Appellant had pled nolo contendre to four prior cases involving sex offenses under 42

Pa.C.S.A. § 9799.14: one in Michigan, and three in Pennsylvania. The Michigan case charged

18 Appellant with a sex crime equivalent under 42 Pa.C.S.A. § 9718.2(a)(2). This was Appellant's

first strike. The subsequent Pennsylvania cases counted as Appellant's second strike. In CP-09-

CR-0004339-2000, Appellant pied to, inter alia, 18 Pa.C.S. § 6301 corruption of minors26• In

CP-09-CR-0005688-2000, Appellant pled to 18 Pa.C.S. § 3121 rape27, 18 Pa.C.S. § 3122. l(b)

statutory sexual assault28, 18 Pa.C.S. § 3125 aggravated indecentassault29, 18 Pa.C.S. §

3126(a)(l) & (2) indecent assaulr'", and 18 Pa.C.S. § 6301 corruption ofminors31. Finally, in

CP-09-0000683-2001, Appellant pled to, inter alia, 18 Pa.C.S. § 6301 corruption ofminors32,

and Pa.C.S. § 6312(d)33.

a. The Habitual Offender Statute Requires the Imposition of a Life Sentence for each Conviction

"The object of all interpretation and construction of statutes is to ascertain and effectuate

the intention of the General Assembly." 1 Pa.C.S. § 1921 (a). The plain language of the statute is

generally the best indicator of such intent. Commonwealth v. Daniels, 963 A.2d 409, 417 (Pa.

2009). The rules of grammar and common usage are acceptable to discern the meaning of the

plain language of the statute. 1 Pa.C.S.A. § 1903 (a); Day v. Civil Serv. Comm1n of Borough of

Carlisle, 931 A.2d 646, 652 (Pa. 2007). We presume that the General Assembly "does not intend

a result that is absurd, impossible of execution or unreasonable" when enacting legislation. 1

Pa.C.S.A. § 1922(1); HSP Gaming. L.P. v. City of Philadelphia, 954 A.2d 1156, 1172 (Pa.

2008). The General Assembly favors the public interest against any private interest. 1 Pa.C.S.A.

§ 1922. We will only look beyond the plain meaning of the statute where the words of the statute

26 Tier I sexual offense under 42 Pa.C.S. § 9799.14(b)(8). 27 Tier III sexual offense under 42 Pa.C.S. § 9799.14(d)(2). 28 Tier III sexual offense under 42 Pa.C.S. § 9799.14(d)(3). 29 Tier III sexual offense under 42 Pa.C.S. § 9799.14(d)(7). 30 Tier I sexual offenses under 42 Pa.C.S. § 9799.14(b)(6); Tier II sexual offense under 42 Pa.C.S. § 9799.14(c)(l.3). 31 Tier I sexual offense under 42 Pa.C.S. § 9799.14(b)(8). 32 Tier I sexual offense under 42 Pa.C.S. § 9799.14(b)(8). 33 Tier I sexual offense under 42 Pa.C.S. § 9799.14(b)(9).

19 are unclear or ambiguous. 1 Pa.C.S.A. § 192l(c); Upper Southampton TWP, v. Upper

Southampton Twp. Zoning Hearing Bd., 934 A.2d 1162, 1167 (Pa. 2007).

42 Pa.C.S.A. § 9718.2(a)(2) states:

Where the person had at the time of the commission of the current offense previously been convicted of two or more offenses arising from separate criminal transactions set forth in section 9799 .14 ... the person shall be sentenced to a term of life imprisonment, notwithstanding any other provision of this title or other statue to the contrary. Proof that the offender received notice of or otherwise knew or should have known of the penalties under this paragraph shall not be required.

(emphasis added).

Appellant contends that the language. of this statute (hereinafter "habitual offender

statute") requires the imposition of only one life sentence. A plain reading of the statutory

language mandates that the court sentence a third-time sex offense under Section 9799.14 to a

life sentence for each "third strike." N.T. 10/27/16, pp. 4-5. Under Appellant's understanding, he

should be sentenced to life but only on one of the twenty-four (24) child pornography counts.

However, the Court contends that the statutory language requires a life sentence for each offence,

beyond two, that arises from separate criminal conduct.

Commonwealth v. Davidson, 938 A.2d 198, 218 (Pa. 2007) made it clear that each

image of child pornography is a single offense that does not merge with an additional child

pornography charge - each image is a separate offense. The statute makes it clear that the

General Assembly intended for Section 6312( d) to punish an individual on each pornographic

image as a discrete and separate criminal act under Section 6312(d). Davidson, 938 A.2d at 218-

19. "There is nothing in this Court's merger case law which supports the contention that only one

sentence [for child pornography under Section 6312(d)] may be imposed for multiple criminal

acts which result in multiple convictions." Davidson, 938 A.2d at 218.

20 Davidson treats each image of child pornography as a single offense. Logically, it makes

sense to treat each image this way as each picture has a different victim and takes a separate act

from the defendant. Turning to the statute, "two or more" prior offenses require the imposition of

a life sentence. The "or more" language suggests that a life sentence for each subsequent offense,

beyond two, viewed individually, is required under the statute. Appellant is a two strike offender

and each image is a third strike, therefore a life sentence must be imposed on each count. The

choice to run each sentence concurrently or consecutively is at the discretion of the sentencing

judge. This interpretation is consistent with the Pennsylvania Supreme Court's reading of

habitual offender statutes. See Commonwealth v. Fields, 107 A.3d 738, 744 (Pa. 2014) (holding

42 Pa.C.S.A. § 9714(a)(l), the habitual violent offender habitual offender statute sharing the

same sentencing language as 9718 .2(a)(2), requires the court to sentence a second-strike offender

to the statutory minimum on each conviction for a violent crime within the second strike).

b. The Habitual Offender Statute does not Violate the United States and Pennsylvania Constitutions' Prohibition Against Cruel and Unusual Punishment

Appellant also argues the three strike law offends his right against cruel and unusual

punishment under the Pennsylvania Constitution and the Eighth Amendment of the United States

Constitution. This claim has been addressed time and again in both the Pennsylvania and federal

courts yet the outcome remains the same -habitual offender statutes are constitutional. Baker, 78

A.3d 1044 (Pa. 2013); see Commonwealth v. Parker, 718 A.2d 1266, 1268 (Pa. Super. 1998)

(citing Parke v. Raley, 506 U.S. 20, 27 (1992)); see also Commonwealth v. Barnett, 50 A.3d 176

(Pa. Super. 2012) (appeal denied). There is nothing cruel or unusual about giving a person three

separate chances to rehabilitate and lead a life free of sex crimes, before permanently removing

the offender from free society, when he proves an inability to resist sexual impulses and comply

with the law.

21 c. The Proportionality of Appellant's Sentence is of No Consequence

Appellant contends the disproportional nature of sentencing him to life as compared to a

standalone sentence for child pornography violates the Pennsylvania and United States

Constitutions. This Court has no discretion to sentence under the statute and disproportionality is

not claim of merit under a habitual offender statute. Balcer, 78 A.3d 1044 (Pa. 2013); see Parker,

718 A.2d at 1268 (rejecting appellant's argument that proportionality is constitutionally

significant in sentencing habitual offenders) (citing Parke, 506 U.S. at 27); see also Barnett, 50

A.3d 176 (Pa. Super. 2012) (appeal denied) (holding no inference of gross disproportionality

existed for a second strike of unlawful contact with a minor, indecent assault, and corruption of

minors, given the history and age of the defendant).

d. Alleyne does not Require a Jury to Find Appellant Pied or was Convicted of Two Prior Crimes under Section 9799.14.

Finally, Appellant argues the imposition of a life sentence violates Alleyne because the

jury did not determine if Appellant committed two or more separate criminal offenses under

Section 9799.14, which resulted in a mandatory life sentence. Entertaining Appellant's claim for

a moment-he suggests the court should inform the jury of two prior convictions for sex crimes.

Aside from the obvious prejudice this would create, this is unnecessary and a misapplication of

sentencing jurisprudence. 34

In determining whether an offender is a second or third strike offender, 42 Pa.C.S. §

9718.2(a)(2) states:

Where the person had at the time of the commission of the current offense previously been convicted of two or more offenses arising from separate criminal transactions set forth in section 9799.14 or equivalent crimes under the law of this Commonwealth in effect at the time of the commission of that offense or

34See generally Meg E. Sawyer, The Prior Convictions Exception: Examining the Continuing Viability of Almendarez-Torres Under Alleyne, 72 Washington and Lee Law Review 409 (2015) (discussing Sixth Amendment jurisprudence and concluding that Almendarez· Torres should be upheld). 22 equivalent crimes in another jurisdiction, the person shall be sentenced to a term of life imprisonment ...

Appellant's prior convictions in Pennsylvania under 9799.14 are not subject to a finding of fact,

they are incontrovertible legally recognized conclusions.

Alleyne v. United States, 133 S. Ct. 2151, (2013), held that any fact increasing the

mandatory minimum sentence, is an "element" and must be submitted to a jury for a finding

beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) concluded any

"facts that increase the prescribed range of penalties to which a criminal defendant is exposed"

are elements of the crime. Though the Court in Alleyne declined to address the issue, they

distinguished prior convictions from its holding as a result of Almendarez-Torres v. United

States, 523 U.S. 224, 239 (1998) (rejecting the claim that recidivism must be treated as an

element of the offense). See Alleyne, 133 S. Ct. at n. 1.

The precise issue is whether prior convictions that statutorily increase a defendant's

sentence, constitute an element of the offense that a jury must find beyond a reasonable doubt in

the underlying case.

The facts of Alleyne are as follows: a judge made a finding of fact at sentencing beyond a

preponderance of the evidence that a gun was "brandished" in the underlying offense, after a jury

trial concluded. Alleyne, 133 S. Ct. at 2152. The lesser standard, preponderance of the evidence

rather than beyond a reasonable doubt, offends defendants' due process rights; a judge-found fact

offends defendants' right to a jury trial. Alleyne, 133 S. Ct. at 2156. The Alleyne holding relates

specifically to "facts" that increase the mandatory minimum. Alleyne, 133 S. Ct. at 2157-61. In

the case sub judice, Appellant contends prior convictions are facts. Prior convictions are not

"facts" under the meaning of Alleyne, they are more aptly characterized as legally recognized

conclusions. Unlike Alleyne, prior convictions are not subject to a finding of fact prior

23 convictions are incontrovertible legally recognized conclusions already determined beyond a

reasonable doubt by a jury; or by the defendant's own waiver and admission via a plea. Footnote

one (1) of Alleyne, distinguishes prior convictions as an entirely separate matter not before the

Court because Appellant did not raise the issue in the briefs. Alleyne, 133 S.Ct. at n. 1. This

infers that the Supreme Court of the United States did not intend for the Alleyne holding to settle

the issue at bar, thereby recognizing the issues as distinguishable. In fact, Almendarez-Torres,

523 U.S. at 239 treats prior convictions as sentencing factors, not elements of the crime, thereby

allowing for a judge to find beyond a preponderance of the evidence that prior convictions exist.

Appellant's argument fails to appreciate a jury already found him guilty of the prior

offenses beyond a reasonable doubt. At the heart of Alleyne, and its progeny, are claims under

the due process clause of the Fifth Amendment and the right to a jury trial under the Sixth

Amendment. Alleyne, 13 3 S. Ct. at 2156. Prior convictions result from a defendant's decision to

plead (and thereby waive his Fifth and Sixth Amendment rights to a have a jury find the

elements beyond a reasonable doubt), or a bench trial (again waiving the Sixth Amendment right

to a jury), or through a jury trial. In any event, defendants suffer no constitutional frustration as a

prior conviction means they either waived or exercised their Fifth and Sixth Amendment rights.

In sum, the conduct triggering a challenge under Allevne, is not present when an increase in the

mandatory minimum sentence comes as a result of a prior conviction.

Turning to the statute, this Court argues the way Section 9799 .14 is constructed,

Appellant's argument would: (1) require juries to engage in the useless proforma process of

matching the Pennsylvania Code from two prior Pennsylvania convictions with Section 9799.14;

and (2) engage in a conclusion of law, not a finding of fact, in determining whether an out of

24 state statute is similar enough to a crime listed under Section 9799.14. Moreover, evidence of

prior convictions would be highly prejudicial to a defendant.

There are if all prior strikes are convictions in Pennsylvania, this issue would boil down

to whether the Commonwealth produced appropriate documentation. Suggesting the

Commonwealth must go through a pro forma process of showing documentation to the jury for

their rubber stamp of approval is useless and serves no rational purpose. At best the jury

determines the Court Sheet showing Appellant's conviction is, in fact, a conviction, and the

crime is listed under Section 9799.14. At worst, the jury makes an error that negates a prior

conviction thereby undermining Pennsylvania's legislative branch, and by extension the citizens

of Pennsylvania.

If the Court agrees with Appellant's assertion, this also means juries, comprised oflay

persons, must make a legal determination as to whether prior out of state convictions fall within

any of the listed crimes under Section 9799.14. In this case, Appellant believes it is in this

interest of justice to have a jury make conclusions of law - that assertion or any argument that

results in such an outcome is preposterous.

To make a jury determine whether prior convictions exist is both unnecessary and invites

confusion. To hold otherwise, would charge a jury with understanding and applying legal

principals like merger doctrine. Should a jury's determination be contrary to the law, they might

find two strikes on a case that should only result in one strike - then the same constitutionally

protected rights that suggested this mechanism, would be violated by its application. If a judge

determines merger before putting the issue to a jury, under Appellant's theory that would still

equate to judicial determination of an element of the offence. In any event, Appellant's argument

results in impracticability.

25 Finally, should Appellant prevail on this claim, courts would be required to re-litigate

each defendant's criminal history prior to sentencing. A criminal defendant only has a

constitutional right to one trial and one appeal, sanctioning a re-litigation of these cases will

· grind the criminal justice system to a halt for no practical purpose.

On the whole, Appellant's Alleyne argument is fatally flawed in its application of the

law, and the practical outcome of its conclusion.

e. Prior Convictions are not too Remote under the Habitual Offender Statute

Neither the statute, nor the comments, require the court to cap the period of time in which

prior convictions may be considered under habitual offender statutes. Cf. United States v.

Patterson, 302 F. App'x 79, 81 (3d Cir. 2008) (holding a federal habitual offender statute has no

cap on consideration of a defendant's prior convictions for purposes of sentencing). Even if such

a cap existed, Appellant committed all of the prior offenses within ten years of each other, if the

time in prison is deducted.

f. Appellant Received Adequate Notice to Respect his Due Process Rights

The notice requirement under the statute is constitutional, clear, and respects individuals'

due process rights. The fact that the Generally Assembly included a notice requirement shows it

was cognizant of defendants' due process rights. See 42 Pa.C.S.A. 9718.2(c). In fact, the

Commonwealth's diligence provided Appellant with notice of the third strike mandatory

minimum earlier than what's required under the statute. Under the statute a defendant must

receive notice of the three strike mandatory minimum after conviction and before sentencing.

Appellant was put on notice at 12:55 p.m. on April 12, 2016, and was found guilty on April 13,

2016. N.T. 8/11/16, pp. 47-48. Additional notice beyond what was required under the statute

affords Appellant more protection of his due process rights, not less.

26 CONCLUSION

For the foregoing reasons, this Court perceives that the present Appeal is meritless. The

rulings at the suppression hearing and the sentence was supported by both the law and the record

in this case. We respectfully request the Superior Court to affirm.

BY THE COURT:

���17 Date

27 Copies to:

Niels C. Eriksen, Jr. 174 Middletown Blvd., Ste 300 Langhorne, PA 19047 Counselfor Appellant

Matt Weintresb Office of the District Attorney Bucks County Justice Center 100 N. Main Street Doylestown, PA 18901 Counselfor Appellee