Com. v. McNulty, J.

Superior Court of Pennsylvania

Com. v. McNulty, J.

DecidedMarch 4, 2016

Docket1767 EDA 2015

StatusUnpublished

This text of Com. v. McNulty, J. (Com. v. McNulty, J.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Com. v. McNulty, J., (Pa. Ct. App. 2016).

Pincite

Opinion

J-S10013-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JAMES P. MCNULTY

Appellant No. 1767 EDA 2015

Appeal from the Judgment of Sentence May 28, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003422-2014

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 04, 2016

Appellant, James P. McNulty, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his

convictions of two counts of dissemination of child pornography, one count

of criminal use of communication facility, and fifty counts of possession of

child pornography.1 We affirm.

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.

Appellant raises the following issue for our review:

____________________________________________

1 18 Pa.C.S.A. §§ 6312(c), 7512(a), and 6312(d), respectively.

_____________________________

*Retired Senior Judge assigned to the Superior Court. J-S10013-16

WHETHER THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO PROVE THAT APPELLANT COMMITTED DISSEMINATION OF PHOTOS OF CHILD SEX ACTS, ONE COUNT OF CRIMINAL USE OF COMMUNICATION FACILITY, AND FIFTY COUNTS OF POSSESSION OF CHILD PORNOGRAPHY[,] THE [LOCATION] WHERE APPELLANT KNOWINGLY DISSEMINATED AND POSSESSED COMPUTER DEPICTIONS OF CHILDREN UNDER THE AGE OF 18 OR THAT HE USED OR CONTROLLED A COMPUTER OR THE IMAGES OF CHILD PORNOGRAPHY[?]

(Appellant’s Brief at 5).2

A challenge to the sufficiency of the evidence implicates the following

legal principles:

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the ____________________________________________

2 To the extent Appellant challenges the sufficiency of the evidence for his criminal use of communication facility conviction, Appellant failed to raise this issue in his Rule 1925(b) statement. Appellant’s failure to raise this issue before the trial court explains why the court’s opinion addressed the sufficiency of the evidence only for Appellant’s dissemination of child pornography and possession of child pornography convictions. Additionally, Appellant’s failure to raise this issue in his Rule 1925(b) statement constitutes waiver of the issue on appeal. See Commonwealth v. Poncala, 915 A.2d 97, 100 (Pa.Super. 2006), appeal denied, 594 Pa. 678, 932 A.2d 1287 (2007) (explaining failure to raise issue in court-ordered Rule 1925(b) statement results in waiver of issue on appeal).

-2- J-S10013-16

combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the [finder] of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.

2003)).

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

applicable law, and the well-reasoned opinion of the Honorable Barbara A.

McDermott, we conclude Appellant’s issue on appeal merits no relief. The

trial court opinion comprehensively discusses and properly disposes of the

question presented. (See Trial Court Opinion, filed August 7, 2015, at 7-12)

(finding: facts established Appellant’s control over entire residence at 743

Watkins Street where agents discovered child pornography; specifically,

Appellant confirmed he and his brother were only occupants of that address,

search of Pennsylvania Justice Network verified that Appellant and his

brother resided at that address, and agents recovered personal documents

in Appellant’s name from computer desk at that address; facts also

established Appellant knowingly possessed and controlled child pornography

found on computers at 743 Watkins Street; search of computers seized from

dining room at that address revealed 4 personal documents in Appellant’s

-3- J-S10013-16

name, 508 child pornography images, 3 child pornography videos, and 100

link files indicative of child pornography; search of computers seized from

Appellant’s bedroom at that address revealed video of Appellant titled

“MeInCoat,” photo of Appellant titled “FacePic,” 844 child pornography

images, and 2 videos indicative of child pornography; importantly, 956 of

1466 child pornography files found on computers seized from that address

were stored under usernames marked “JAMES” and no child pornography

files were discovered under usernames “JUSTIN”; of 510 child pornography

files stored under generic usernames, agents discovered items on those

computers that identified Appellant as user; additionally, evidence

established Appellant had intent to exercise control over child pornography

files; specifically, Appellant made several comments in presence of agents

which implied his use of computers and his knowledge that computers

contained illegal content; under totality of circumstances, sufficient evidence

existed to establish that Appellant knowingly possessed child pornography

discovered on computers confiscated from 743 Watkins Street; sufficient

evidence also existed to prove Appellant possessed child pornography for

purpose of dissemination; on September 15 and 18, 2013, Special Agent

Tabak downloaded two child pornography videos from individual using file-

sharing program to offer child pornography for download on BitTorrent

network; Special Agent Tabak determined that individual who shared child

pornography had used IP address associated with Appellant’s residence;

-4- J-S10013-16

examination of computer confiscated from Appellant’s bedroom indicated it

was computer used to download two child pornography videos copied by

Special Agent Tabak; further examination of computer revealed that user

had searched for, downloaded, and viewed those two child pornography

videos on September 14, 2013; significantly, Appellant admitted he had

used file-sharing program on computers located at 743 Watkins Street; thus,

sufficient evidence also existed to support Appellant’s dissemination of child

pornography conviction). Accordingly, we affirm on the basis of the trial

Free access — add to your briefcase to read the full text and ask questions with AI