Commonwealth v. Jarowecki

923 A.2d 425, 2007 Pa. Super. 107, 2007 Pa. Super. LEXIS 761
CourtSuperior Court of Pennsylvania
DecidedApril 17, 2007
StatusPublished
Cited by38 cases

This text of 923 A.2d 425 (Commonwealth v. Jarowecki) 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
Commonwealth v. Jarowecki, 923 A.2d 425, 2007 Pa. Super. 107, 2007 Pa. Super. LEXIS 761 (Pa. Ct. App. 2007).

Opinions

OPINION BY

TAMILIA, J.

¶ 1 Craig Scott Jaroweeki appeals from the July 3, 2006, aggregate judgment of sentence of 37 months to 17 years imprisonment, followed by 20 years of special probation, imposed after he was convicted by a jury of eight counts of sexual abuse of children.1

¶ 2 In January of 2005, America Online (AOL) notified law enforcement authorities it had detected that a person utilizing the email address “cj8959@aol” had sent an image depicting child pornography through an email transmission. Record, Affidavit of Probable Cause. AOL, pursuant to an Order of court, revealed that the subscriber listed as the owner of the email address was appellant. Id. Acting on this information, authorities in Berks County obtained a search warrant for appellant’s residence. Id. On January 20, 2005, police executed the warrant on appellant’s residence, seizing computers and removable storage disks. Id.

¶ 3 A subsequent forensic examination of several of the LS-120 disks and CD-ROM disks2 revealed several still and moving digital images that detectives suspected were child pornography. Id. After recovering these images, police consulted with a pediatrician who verified that the subjects in these images were clearly under the age of 18. Id. Shortly thereafter, appellant was charged with ten counts of sexual abuse of children.3

[427]*427¶ 4 Trial commenced on March 29, 2006, and the jury returned its guilty verdict on March 31, 2006.4 At sentencing on July 3, 2006, the Commonwealth moved to apply the enhanced grading provision found in 18 Pa.C.S.A. § 6312, Sexual abuse of children, (d)(2), Possession of Child Pornography, which provides:

(2) A first offense under this subsection is a felony of the third degree, and a second or subsequent offense under this subsection is a felony of the second degree.

Id. The trial court granted the Commonwealth’s motion and sentenced appellant to a term of twelve months to seven years imprisonment on the first sexual abuse count, grading the count as a third-degree felony. The court then applied section 6312(d)(2) and graded the remaining seven sexual abuse convictions as second-degree felonies. Accordingly, appellant was sentenced on the second through fourth counts of sexual abuse to three concurrent terms of 25 months to 10 years imprisonment, to run consecutively to the term of imprisonment imposed for count one. On the remaining four counts, appellant was sentenced to two 10-year terms of special probation.

¶ 5 After being granted an extension of time in which to file post-trial motions, appellant filed a post-sentence motion on July 25, 2006, which was denied the next day. This appeal followed.

¶ 6 Appellant raises the following issues for our review:

A.Whether the Court erred in permitting, on motion of the Commonwealth, and over objection of defense counsel, the Information to be amended on July 3, 2006, reflecting an enhancement in grading from F-3 to F-2 for Counts 2-8 as a result of Appellant’s conviction on Count 1 of the Information?
B. Whether the enhanced penalty Appellant received at sentencing on Counts 2 through 8 as a result of his conviction on Count 1 was illegal as no statutory support was given?
C. Whether the verdict was against the weight of the evidence where the trial court erred in permitting Detective Stewart as an expert in the area of Mae computers when Detective Stewart’s own testimony asserted that he was not?
D. Whether the verdict was against the weight of the evidence where AOL representative Don Colcolough, certified as an expert in law enforcement and legal affairs as it relates to AOL, testified to the “most common” method of using AOL to send an image?
E. Whether the verdict was against the weight of the evidence where the trial court permitted, over objection of defense counsel, the thumbnail pornographic images to be displayed to the jury via a Power Point slide presentation and enlarged to a size of 6 feet by 8 feet?

Appellant’s brief at 6-7.

¶ 7 We note that appellant also raised three additional issues, the first of which challenges the discretionary aspects of sentencing while the latter two challenge the sufficiency of the evidence. Appellant’s brief at 8. These issues have been waived by virtue of appellant’s failure to comply with Pennsylvania Rule of Appellate Procedure 2116, Statement of [428]*428Questions Involved, (a) General rule, which provides:

The statement of the questions involved must state the question or questions in the briefest and most general terms, without names, dates amounts or particulars of any kind. It should not ordinarily exceed 15 lines, must never exceed one page, and must always be on a separate page, without any other matter appearing thereon. This rule is to be considered in the highest degree mandatory, admitting of no exception....

Id. (emphasis added).

¶ 8 Appellant’s statement of the questions involved easily exceeds 30 single-spaced lines and is almost one and a half pages in length. Appellant’s brief at 7-8. Many of the lines are consumed with argumentative statements corresponding to the issues raised. In our analysis, therefore, we will consider only the arguments appellant raises on the first page of his statement of the questions involved. Commonwealth v. Andrulewicz, 911 A.2d 162, 164 n. 7 (Pa.Super.2006) (applying Rule 2116); see also, Kanter v. Epstein, 866 A.2d 394, 402 (Pa.Super.2004). We do not believe the language of Rule 2116 allows for exceptions.5

Grading and Sentence Enhancement

¶ 9 In fashioning appellant’s sentence, the trial court relied on the grading enhancement provision contained in 18 Pa. C.S.A. § 6312(d)(2), supra, which, as previously stated, provides:

(2) A first offense under this subsection is a felony of the third degree, and a second or subsequent offense under this subsection is a felony of the second degree.

Id. Appellant contends the trial court erred by permitting the Commonwealth, on the date of sentencing, to amend the information to allow for counts two through eight to be prosecuted as felonies of the second degree rather than the third degree thus resulting in imposition of a harsher sentence. In forwarding this contention, appellant maintains the phrase “second or subsequent offense” does not allow for a conviction within a multiple count complaint to serve as a grading enhancement for another conviction contained within the same complaint.

¶ 10 Appellant’s argument raises a pure question of law and, therefore, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Sloan, 589 Pa. 15, 22, 907 A.2d 460, 465 (2006). A diligent research effort has failed to uncover any case in this Commonwealth’s jurisprudence where the application of 18 Pa.C.S.A. § 6312(d)(2) has been challenged.

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Cite This Page — Counsel Stack

Bluebook (online)
923 A.2d 425, 2007 Pa. Super. 107, 2007 Pa. Super. LEXIS 761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-jarowecki-pasuperct-2007.