Commonwealth v. Kirkpatrick

76 Pa. D. & C.4th 49
CourtPennsylvania Court of Common Pleas, Monroe County
DecidedSeptember 30, 2005
Docketno. 600 CRIMINAL 2005
StatusPublished

This text of 76 Pa. D. & C.4th 49 (Commonwealth v. Kirkpatrick) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Monroe County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Kirkpatrick, 76 Pa. D. & C.4th 49 (Pa. Super. Ct. 2005).

Opinion

WORTHINGTON, J.,

On March 16,2005, Detective Douglas A. Knowles, who is employed by the Stroud Area Regional Police Department and is also a member of the Pennsylvania State Police Area V Computer Task Force, received information from Gabriela Renda regarding possible child pornography. Ms. Renda relayed that she was having problems with her computer, located in the bedroom of her 756 Main Street, Stroudsburg, Pennsylvania residence. She communicated to the detective that while she was trying to figure out the problem, she opened a file that was located in a shared Network file. The Network was shared via a router1 and was connected to a computer that was owned by Christopher Kirkpatrick, defendant, who resides in another bedroom at the same address. When Ms. Renda opened the file, she observed that it contained file names that she thought were suspicious; namely files entitled “8-year-old boys,” “10-year-old girls,” “kindergarten kids,” and “dad with daughters.”

Upon hearing this information, Detective Knowles, along with Detective Wolbert and Officer Paul Gasper, executed a search warrant at defendant’s apartment. Included in the inventory of items seized during the search were several hundred DVDs and a computer gigabyte tower with two hard drives. A forensic analysis was done on both hard drives using a Digital Intelligence Forensic Fire Chief, a device that enables detectives to view im[51]*51ages that are stored on a hard drive. The analysis revealed several images indicating child pornography, specifically photos that appeared to illustrate pre-teen girls participating in sexual acts with adult men. The detectives downloaded the suspect images onto an Imation CD-R DVD and delivered said DVD to Dr. Andrea Taroli, an employee of the PEGASUS Child Advocacy Center, for analysis. Dr. Taroli reviewed over 50 images and determined that 39 of them depicted children who were 12 years of age or younger.

As a result of the discovery of the aforementioned images, defendant was arrested on March 16, 2005 and charged with sexual abuse of children, in violation of 18 Pa.C.S. §6312, specifically subsection (d)(1), possession of child pornography. The foregoing count was included in a criminal Information filed by the Commonwealth. Defendant waived formal arraignment on June 1, 2005. On June 13, 2005, defendant served on the district attorney’s office a request for a bill of particulars. Seven days elapsed without the district attorney’s office furnishing the particulars and on June 20, 2005, defendant filed an application for order for bill of particulars. By order dated June 21, 2005, the Commonwealth was directed to file a bill of particulars within 10 days. To date, no bill has been filed.

On July 7, 2005, defendant filed a timely omnibus pretrial motion for relief, which included: (1) a motion to quash the information; (2) a motion to suppress any evidence seized under the Commonwealth’s search warrant; and (3) a motion for return of property. A hearing was held on July 26,2005. Both parties submitted briefs in support of their respective positions and defendant’s motions are now before us for disposition.

[52]*52MOTION TO QUASH THE INFORMATION

Defendant’s initial request for relief is in the nature of a motion to quash the criminal Information. The Information reads:

“The attorney for the Commonwealth of Monroe County by this Information charges that in the County of Monroe, Pennsylvania, Christopher Kirkpatrick: “Count: 1 possession of child pornography — (F3) 18 §6312 §§D
“Defendant had many pornographic images on his computer of naked children under the age of 18-years-old.
“Citation of statute and section: 118 §6312 §§D (F3)
“All of which is against the Act of Assembly and the peace and dignity of the Commonwealth.”

Defendant alleges that the language of the preceding Information, as currently drafted, does not charge a violation of 18 Pa.C.S. §6312(d), which reads:

“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. §6312(d)(1). Defendant argues that a picture of a naked child, without more, is not prohibited by the foregoing language. Additionally, the word “pornographic” is not defined in the statute. He therefore claims that the Information, as drafted, fails to charge him with a violation of the statutoiy section at issue. As such, defendant asks that we dismiss the charge pending against him.2

[53]*53Pennsylvania Rule of Criminal Procedure 560 sets forth the requirements for the filing of a criminal Information and provides:

“(A) After the defendant has been held for court, the attorney for the Commonwealth shall proceed by preparing an Information and filing it with the court of common pleas.
“(B) The Information shall be signed by the attorney for the Commonwealth and shall be valid and sufficient in law if it contains:
“(1) a caption showing that the prosecution is carried on in the name of, and by the authority of, the Commonwealth of Pennsylvania;
“(2) the name of the defendant, or if the defendant is unknown, a description of the defendant as nearly as may be;
“(3) the date when the offense is alleged to have been committed if the precise date is known, and the day of the week if it is an essential element of the offense charged, provided that if the precise date is not known or if the offense is a continuing one, an allegation that it was committed on or about any date within the period fixed by the statute of limitations shall be sufficient;
“(4) the county where the offense is alleged to have been committed;
“(5) a plain and concise statement of the essential elements of the offense substantially the same as or cognate to the offense alleged in the complaint; and
“(6) a concluding statement that ‘all of which is against the Act of Assembly and the peace and dignity of the Commonwealth.’ ” Pa.R.Crim.P. 560.

[54]*54At the hearing, the Commonwealth conceded that the language of the original Information contains omissions and is not in accordance with the rules, but argued that said defects do not entitle defendant to his requested relief. We agree.

We find that the language of the Information put defendant on notice regarding the criminal act with which he was being charged, the statutory section that was, in turn, implicated, and his alleged conduct that gave rise to the charge. Therefore, the Commonwealth’s failure to include the date when the offense is alleged to have occurred or a plain and concise statement of the essential elements of the offense does not obviate the defendant from understanding the nature of the charge against him.

At the time of hearing, the Commonwealth, recognizing the deficiencies in the original Information, requested leave to file an amended Information. Pennsylvania Rule of Criminal Procedure 564 addresses amendments to In-formations and provides:

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Bluebook (online)
76 Pa. D. & C.4th 49, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-kirkpatrick-pactcomplmonroe-2005.