Commonwealth v. Detsch

15 Pa. D. & C.5th 118
CourtPennsylvania Court of Common Pleas, Berks County
DecidedJuly 14, 2010
Docketno. CP-06-CR-4266-2005
StatusPublished

This text of 15 Pa. D. & C.5th 118 (Commonwealth v. Detsch) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Berks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Detsch, 15 Pa. D. & C.5th 118 (Pa. Super. Ct. 2010).

Opinion

PARISI, J,

On January 20, 2010, the defendant was found guilty of a single count of sexual abuse of children possession of child pornography1 following a non jury trial. This court subsequently ordered the Pennsylvania Sexual Offenders Assessment Board to evaluate the defendant in order to determine if he met the criteria for classification as a sexually violent predator. After the evaluation was conducted, this court determined that the defendant was not a sexually violent predator. On April 26, 2010, the defendant received a split sentence, with this court sentencing the defendant to a period of incarceration of not less than six months nor more than 23 months, followed by two years of pro[120]*120batí on. On May 24, 2010, the defendant filed a timely notice of appeal to the Superior Court. The defendant raises the following claims on appeal:

“(1) Whether the evidence presented by the Commonwealth at trial was sufficient to sustain the conviction for sexual abuse of children when it was not shown the defendant possessed pornographic images of underage children and the reasonable inferences to be drawn from the evidence presented at trial are equally consistent with the possibility that someone other than the defendant possessed the images.
“(2) Whether the evidence presented by the Commonwealth at trial was sufficient to sustain the conviction for sexual abuse of children when it was not shown that the images were of real children as opposed to computer generated images.
“(3) The lower court erred by improperly admitting Commonwealth exhibit 12 based on the improper admission of Commonwealth exhibit 17 which was hearsay not subject to an exception under the Hearsay Rule, Pa. Rule of Evidence 802, and whose declarant was not subject to cross-examination, in violation of the defendant’s right to confrontation in violation of the 6th Amendment to the U.S. Constitution and Article 1 Section 9 of the Pa. Constitution.” Defendant’s concise statement of matters complained of on appeal, 6/15/10.

FACTUAL BACKGROUND

On February 14, 2005, a cybertip was generated by the National Center for Missing and Exploited Children which was then accessed by Detective David Peifer of [121]*121the Delaware County District Attorney’s office. The tip indicated that an America Online (AOL) customer with the screen name “schillerl759” emailed an image of child pornography on February 11, 2005 from the email address “schillerl759@aol.com.” The image appeared to be of a child under the age of 18 completely nude and engaged in a sexually explicit act/pose that revealed and exposed the child’s genitalia. AOL informed Detective Peifer that the account subscriber associated with the screen name “schillerl759” was the defendant. Detective Peifer secured a court order enabling him to acquire the internet protocol (IP) address for the computer from which the image was sent. The IP address was linked to a phone number belonging to the defendant. Detective Douglas Weaver and other members of the Berks County detectives executed a search warrant on the defendant’s residence located at 15895 Kutztown Road, Maxatawny Township, Pennsylvania. The defendant admitted that he was the subscriber of the AOL account described in the search warrant, but stated the account had been terminated in February for a violation, and now he knew what that meant. According to the defendant, the screen name, “schilierl759” was used by his roommate, Daniel Schaffer.

The police seized three computers, a hard drive, and hundreds of three and one-half inch floppy disks, five of which contained suspected child pornography, from the defendant’s residence. The defendant admitted to downloading material onto the floppy disks and labeling them. Some of the disks that contained suspected pornography were commingled with college lesson plans, college examinations and college syllabi.

[122]*122Dr. Mark Reuben, a board-certified pediatrician, examined the images of suspected child pornography and determined, within a reasonable degree of medical certainty, that there were four photographs of nude children under the age of 18.2 One of these photographs was taken from on a floppy disk3 labeled, “National Seminars Group,”4 which was written in the defendant’s handwriting. Next to this label were the letters “MF” and “G hole no. 2.” Another photograph of nude individuals under the age of 18 was taken from a file labeled “bear 4047”5 located on the defendant’s Toshiba laptop. This file was accessed during the same time period as a file containing an answer sheet to a psychology exam on March 10, 2005.

The defendant, a Doctor of Philosophy, had previously taught psychology and related subjects at several schools, including Montgomery County Community College, and also conducted seminars for National Seminars Group.

DISCUSSION

The defendant’s first and second claims will be addressed together as they challenge the sufficiency of the Commonwealth’s evidence.

When reviewing the sufficiency of the evidence courts view the evidence in the record in the light most favorable to the Commonwealth as the verdict winner, and draw all reasonable inferences in its favor. Common[123]*123wealth v. Davidson, 860 A.2d 575, 579-80 (Pa. Super. 2004). The reviewing court must then determine whether the evidence was sufficient to have permitted the trier of fact to find that each and every element of the crimes charged was established beyond a reasonable doubt. Id. at 580. The facts established by the Commonwealth need not be absolutely incompatible with the defendant’s innocence so long as the evidence against the defendant is not “so weak and inconclusive that as a matter of law no probability of fact can be drawn from the circumstances.” Id. The Commonwealth may meet its burden by means of wholly circumstantial evidence. Commonwealth v. Crayhill, 926 A.2d 488, 490 (Pa. Super. 2007). Furthermore, it is within the province of the trier of fact to weigh the credibility of witnesses and to believe all, part, or none of their testimony. Commonwealth v. McCalman, 795 A.2d 412, 415 (Pa. Super. 2002).

Under section 6312(d)(1), a person commits a felony of the third degree when they:

“knowingly possess or control 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.”

A “prohibited sexual act” is defined as under section 6312(a) as:

“sexual intercourse, masturbation, sadism, masochism, bestiality, fellatio, cunnilingus, lewd exhibition of the genitals, or nudity if such nudity is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction.”

[124]

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Related

Commonwealth v. McCalman
795 A.2d 412 (Superior Court of Pennsylvania, 2002)
Commonwealth v. Crabill
926 A.2d 488 (Superior Court of Pennsylvania, 2007)
Commonwealth v. Rega
933 A.2d 997 (Supreme Court of Pennsylvania, 2007)
Commonwealth v. Davidson
860 A.2d 575 (Superior Court of Pennsylvania, 2004)
Commonwealth v. Koehler
914 A.2d 427 (Superior Court of Pennsylvania, 2006)

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Bluebook (online)
15 Pa. D. & C.5th 118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-detsch-pactcomplberks-2010.