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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

court’s opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2016




                                    -5-
                                                                                               Circulated 02/22/2016 11:02 AM




                          IN THE COURT OF COMMON PLEAS
                     FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                              CRIMINAL TRIAL DIVISION

COMMONWEALTH OF PENNSYLVANIA                                                CP-51-CR-0003422-2014


                                CP-51-CR-0003422-2014     Comm.    v.   McNulty, James P
                                                        Opinion
       v.


JAMES MCNULTY
                                      111111111111111
                                               7329486551
                                                                  Ill I II I Ill
                                                   OPINION

McDermott, J.                                                                                August 7, 2015


Procedural History

       On January 7, 2014, the defendant, James McNulty, was arrested and charged with two

counts of Dissemination of Photos of Child Sex Acts, one count of Criminal Use of

Communication Facility, and fifty counts of Possession of Child Pornography. On June 17, 2014,

the defendant entered into a non-negotiated guilty plea to two counts of Dissemination of Photos

of Child Sex Acts, one count of Criminal Use of Communication Facility, and twenty-five counts

of Possession of Child Pornography, before the Honorable Ann Butchart. Judge Butchart

deferred sentencing until August 14, 2014, for the completion of pre-sentence and mental health

reports. On August 14, 2014, the defendant filed a Motion to Withdraw his guilty plea, and on

the same date, Judge Butchart granted the defendant's Motion.

       On March 26, 2015, the case was transferred to this Court for trial. After a bench trial the

same date, this Court found defendant guilty of all charges and revoked bail. On May 28, 2015,

after a hearing, this Court determined the defendant was not a sexually violent predator. That

same day, this Court sentenced defendant to concurrent terms of imprisonment of two to four
years for both counts of Dissemination of Photo of Child Sex Acts, a consecutive term of

imprisonment of two to four years for Criminal Use of Communication Facility, and one year of

probation for ten counts of Possession of Child Pornography, each to run consecutive to the

other, for a total sentence of four to eight years of imprisonment followed by ten years of

probation. No further penalty was imposed on the forty remaining charges of Possession of Child

Pornography ..

        On June 12, 2015, the defendant filed a Notice of Appeal to the Superior Court. On June

16, 2015, this Court ordered the defendant to file a Statement of Matters Complained of on

Appeal pursuant to Pa.R.A.P. 1925(b). On June 25, 2015, the defendant filed a timely Statement.




        On September 15, 2013, Special Agent Duane Tabak of the Pennsylvania Attorney

General's Office's Child Predator Section conducted an investigation to identify individuals

possessing and sharing child pornography using the BitTorrent file-sharing network.' On

September 15, 2013, and again on September 18, 2013, Special Agent Tabak made a direct

connection to a computer utilizing the IP address 68.82.141.16. This IP address was operating on

the BitTorrent Network and was making child pornography publicly available for download.

Special Agent Tabak successfully downloaded two video files depicting children, under the age

of eighteen years old, engaging in sexual acts. N.T. 3/26/2015 at 45-47.

         On October 24, 2013, Special Agent Tabak obtained a court order directing Comcast to

release the subscriber information associated with IP address 68.82.141.16 for the dates of

September 15 and September 18. On October 28, 2013, Special Agent Tabak received

information pursuant to the order indicating that Wang Chang of743 Watkins Street in


I
  BitTorrent is a file sharing Network that allows users to download and share files with others via the internet. N.T.
3/26/2015 at 39.

                                                                                                                      2
    Philadelphia was the subscriber to that IP address. On December 16, 2013, Special Agent Tabak

prepared a search warrant for 743 Watkins Street. N.T. 3/26/2015 at 52-53, 56, 58-59.

           On December 16, 2013, Agent Kurt Smith, the Philadelphia Regional Supervisor from

the Attorney General's Office's Child Predator Section, executed the search warrant on 743

Watkins Street. Agent Smith spoke with the defendant who confirmed that he and his brother,

Justin McNulty, lived at 743 Watkins Street.2 During the search of the residence, Agent Daniel

Block testified to overhearing the defendant tell his brother the following statements: "I've

downloaded some extreme stuff, but I always thought they were adults;" "No matter what,

they're going to find something illegal;" "This is horrible shit. They got all my hard drives. How

am I going to show my face around my kids now;" "I didn't get to say good-bye to my kids and

my ass is getting locked up;" and "They are ta1cing my IBM. Fuck." N.T. 3/26/2015 at 85-86,

107-08.

          Law enforcement recovered seventy-five computer related items from the McNulty

residence including multiple computers, loose hard drives, and other media storage devices. Law

enforcement also seized a photo ID, a vehicle title, and other paperwork belonging to the

defendant on the computer desk in the first-floor dining room. 3 There was no documentation

pertaining to Justin McNulty in the vicinity of the computers. From what Agent Smith believed

to be Justin McNulty's room, agents recovered a Comcast bill dated September 12, 2013, that

was addressed to Wang Chang. From what Agent Smith believed to be the defendant's bedroom,

agents recovered one Apple computer, one Apple Mac computer tower and one external storage

device. When Agent Smith informed the defendant that the search was related to child


2
  Agent Smith later confirmed the defendant and Justin McNulty's addresses through Pa. Justice Network. N.T.
3/26/2015 at 87.
3
  The computers were found in the first-floor main room which combined both the living room and dining room.
N.T. 3/26/2015 at 93-94.

                                                                                                               3
pornography, the defendant responded, "people get twenty years for downloading." N.T.

3/26/2015 at 61, 92, 96-97, 101.

         On November 24, 2014, Agent Braden Cook of the Attorney General's Forensic Unit

examined the items seized from the defendant's residence. According to Agent Cook, nine items

contained child pornography. An examination of an eMachines computer tower confiscated from

the dining room of the McNulty residence revealed a user profile marked "JAMES." Under this

user profile, Agent Cook discovered three child pornography videos and eighty-six Torrent files,

indicative of child pornography, that were downloaded on January 31, 2011, and stored under the

folder marked "Vuze."4 N.T. 3/26/2015 at 124, 134-35, 137.

         From an Apple Mac Minicomputer, seized from the dining room, Agent Cook recovered

508 child pornography images under the user profile marked "FirstLast." Also under this user

profile, Agent Cook discovered four business documents belonging to the defendant including: a

rejection letter from the Patent and Trademark Office addressed to the defendant and dated May

14, 2013; a letter addressed to Mr. Kurt Hughes from the defendant; an amendment name change

document; and articles of amendment for "Holoco Incorporated," listing the defendant as

Chairman and sole director. There was no relevant information discovered under the user profiles

marked "GateVistaJames" and "VaioPrintJames." N.T. 3/26/2015 at 165-67.

         Agent Cook examined a Compaq Presario C500 laptop computer, also confiscated from

the dining room. There were two non-default user profiles associated with this laptop computer,

one marked "JAMES" and the other marked "JUSTIN." Agent Cook retrieved twenty-four link

files that were indicative of child pornography stored under the user profile "JAMES." Agent




4
 Vuze is a file-sharing program accessible on the BitTorrent network that allows users to share electronic files. N.T.
3/26/2015 at 38.

                                                                                                                     4
Cook did not discover any child pornography stored under the user profile "JUSTIN." N.T.

3/26/2015 at 168-69.

       An examination of an Apple Power Mac G5 computer tower that agents seized from the

defendant's bedroom revealed a user profile marked "JAMES." Under this user profile, Agent

Cook discovered a Vuze file-sharing program and 843 child pornographic pictures that were

downloaded on August 3, 2009. N.T. 3/26/2015 at 140-41.

       Agent Cook examined an Apple iMac computer, also recovered from the defendant's

bedroom, which revealed one child pornographic picture downloaded on January 12, 2012, and

stored under a non-default user profile marked "USER." Elsewhere on this computer, Agent

Cook discovered the two videos that Special Agent Tabak successfully downloaded on

September 15, 2013 and September 18, 2013. Special Agent Tabak determined that both videos

were searched and downloaded on September 14, 2013, and further determined that both videos

were viewed on this computer. In an attempt to identify the user of this profile, Agent Cook

examined other files located on this computer and found a video of the defendant with the file

name "MelnCoat" and a picture of the defendant with the file name "FacePic." N.T. 3/26/2015 at

152, 154, 161-164.

       On December 16, 2013, law enforcement issued an arrest warrant for the defendant. On

January 7, 2014, the defendant surrendered. N.T. 3/26/2015 at 98-99.

       Justin McNulty, the defendant's brother, testified on the defendant's behalf that Justin

McNulty operated a computer repair business in his home. Justin McNulty recalled working on

four customers' computers on December 16, 2013, and indicated that most of the computers

confiscated from the first floor belonged to his customers. According to Justin McNulty, his

employee, James Smith, who had been installing operating systems on the customers' computers



                                                                                                  5
since 2002, was responsible for putting "JAMES" as the primary default account on these

computers. Justin McNulty testified that the defendant carried his own laptop around with him

and had used a separate Wi-Fi system from Clear Channel since 2005. Justin McNulty and his

neighbor Wang Chang agreed to put the cable Wi-Fi service from Comcast in Wang Chang's

name, creating an open network for both parties to use. N.T. 3/26/2015 at 182, 185-87, 198, 202.

       Justin McNulty also presented alibi evidence that he picked up the defendant on Tuesday,

September 10, 2013, from his probation meeting and transported him to Kelly Baran's residence

in New Jersey. He believed the defendant remained in New Jersey until Friday, September 13,

2013, at which time he picked up the defendant and drove him to his residence at 743 Watkins

Street in Philadelphia, where the defendant remained for the weekend. Justin McNulty then

drove the defendant back to New Jersey on Sunday, September 15, 2013, where the defendant

remained until September 20, 2013. N.T. 3/26/2015 at 205-06.

       Kelly Baran, the mother of the defendant's children, testified on behalf of the defense.

Baran testified that in September of 2013, the defendant would stay with her at her home located

in National Park, New Jersey and with his brother in Philadelphia. Baran stated that the

defendant was in New Jersey the week before his daughter's birthday on September 20, 2013,

and departed the night of September 20, 2013. N.T. 3/26/2015 at254-55, 257, 259.

       The defendant testified to being in New Jersey on the 15 and 18 of September, 2013. The

defendant admitted to using the computers agents confiscated from 7 4 3 Watkins Street, but

specified that he worked primarily on a computer that he kept in his possession. The defendant

denied downloading any child pornography on any computers and stated that he never set up the

user profile "JAMES." N.T. 3/26/2015 at 224-25, 229-30, 237, 240.




                                                                                                  6
       The defendant claims that the evidence was insufficient to support his convictions

because the Commonwealth failed to establish the defendant knowingly disseminated or

possessed computer depictions of children engaging in a prohibited sexual act or that the

defendant knowingly controlled child pornography.

       Evidence presented at trial is sufficient when, viewed in the light most favorable to the

Commonwealth as the verdict winner, the evidence and all reasonable inferences derived

therefrom are sufficient to establish all elements of the offense beyond a reasonable doubt.

Commonwealthv. Baumhammers, 960 A.2d 59, 68 (Pa. 2008). The Commonwealth may sustain

its burden of proving every element of the crime beyond a reasonable doubt by means of wholly

circumstantial evidence: Commonwealth v. Estepp, 17 A.3d 939, 943 (Pa. Super. 2011) (citing

Commonwealth v. Brooks, 7 A.3d 852, 856-57 (Pa. Super. 2010)). The fact-finder is free to

believe all, part, or none of the evidence, and credibility determination rest solely within the

purview of the fact-finder. Commonwealth v. Treiber, 874 A.2d 26, 30 (Pa. 2005).

       The defendant claims that the evidence is insufficient to prove he controlled child

pornography. 18 Pa.C.S. § 6312(d) establishes that a person is guilty of Sexual Abuse of

Children if:

               Any person intentionally views or 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.

Commonwealth. v. Diodoro, 970 A.2d 1100, 1107 (Pa. 2009). The Commonwealth need not

establish that an individual controlled the child pornography to prove a violation of the statute if

it can prove that a defendant knowingly possessed the child pornography. Id. at 1107.



                                                                                                       7
       Possession can be proven by showing actual possession or by showing constructive

possession. Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa. Super. 2014). Courts have

defined constructive possession as "the ability to exercise a conscious dominion over the

material; the power of control and the intent to exercise that control." Commonwealth v. Hanson,

82 A.3d 1023, 1035 (Pa. 2013).

       Constructive possession can be proven by circumstantial evidence and the requisite

knowledge and intent may be inferred from examination of the totality of the circumstances.

Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004). For example, in Commonwealth

v. Davidson, the Superior court held that the evidence was sufficient to establish that defendant

knowingly possessed images of child pornography that were found on his computer. The

Commonwealth presented evidence that the defendant was the owner and administrator of the

computer and each of the twenty-eight pornographic photographs appeared in more than one

place on the defendant's computer. Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa. Super.

2004) aff'd, 938 A.2d 198 (Pa. 2007).

       Similarly, in Commonwealth v. Koehler, the Superior Court held that the evidence was

sufficient to support the defendant's convictions of Sexual Abuse of Children and Possession of

Child Pornography. There, the evidence consisted of a screen name and a systems properties

name all referring in some respects to the defendant's proper name. The evidence also

demonstrated that the defendant had ownership, use, and the ability to access the computer and

the child pornography. Based on the totality of the circumstances, the court reasonably inferred

that the defendant was the person who possessed the child pornography. Commonwealth v.

Koehler, 914 A.2d 427, 437 (Pa. Super. 2006).




                                                                                                    8
       Other factors utilized by courts to determine whether a defendant possessed child

pornography include: the defendant's ability to retain, download, save or print the image, the

defendant's assertive steps that led to the downloading of child pornography images, and the

defendant's knowledge of the existence of the images of child pornography. Diodoro, 970 A.2d

at 1107 (holding that the evidence was sufficient to find the defendant guilty of Possession of

Child Pornography where the defendant had 340 images of child pornography images stored on

his hard drive.)

        In the instant case, the evidence establishes that the defendant knowingly possessed the

child pornography discovered on the computers confiscated from 743 Watkins Street. The

defendant resided at 743 Watkins Street and confirmed that he and his brother were the only

occupants of the residence. N.T. 3/26/2015 at 87. Agent Smith conducted a search on the

Pennsylvania Justice Network ("JNET") which verified that Justin and James McNulty were the

residents of 743 Watkins Street. Id. In addition, agents recovered mailing and personal

documents addressed to the defendant from the computer desk located in the dining room

identifying his address as 743 Watkins Street. Id. at 95-96. Such facts are sufficient to prove the

defendant had control over the entire premises, including the areas where the computers

containing child pornography were located.

        The pornographic files Agent Cook discovered on the seized computers provided further

support that the defendant had control and access to the child pornography. From the eMachines

computer tower, the Apple Mac Minicomputer and the Compaq Presario laptop computer, all

seized from the dining room, Agent Cook collectively retrieved four personal documents

belonging to the defendant, 508 child pornography images, three child pornographic videos, and

 100 link files indicative of child pornography. N.T. 3/26/2015 at 134, 137-38, 166, 168. From the



                                                                                                      9
Apple Power Mac GS computer tower and Apple iMac computer, both confiscated from the

defendant's bedroom, Agent Cook collectively discovered a video of the defendant named

"MelnCoat," a photograph of the defendant named "FacePic," 844 pornographic images, and

two video files indicative of child pornography. Id. at 140, 152, 163.

       956 out of the 1,466 child pornography files found by Agent Cook were stored under

folders or user names marked "JAMES." No pornographic material was found under the user

profile marked "JUSTIN" N.T. 3/26/2015 at 169. For the 510 child pornography files stored

under generic user profiles, Agent Cook discovered items that identified the defendant as the

user of these computers. On the Apple iMac computer seized from the defendant's bedroom,

Agent Cook discovered a video of the defendant with the file name "MelnCoat," and a picture of

the defendant with the file name "FacePic." Id. at 163. On the Apple Mac minicomputer

confiscated from the dining room, Agent Cook discovered four business documents belonging to

the defendant. This evidence provides indicia of the defendant's control and ownership of the

child pornography. Id. at 166.

        Additionally, the evidence established that the defendant had the intent to exercise

control over the child pornography. Intent to exercise control over material may be established

by knowledge of its presence. Commonwealth v. Bricker, 882 A.2d 1008, 1016 (Pa. Super.

2005). According to both Agent Smith and Agent Block, the defendant admitted: (1) "They got

all my hard drives ... "; (2) "I've downloaded some extreme stuff, but I always thought they

were adults"; and (3) "People get twenty years for downloading." N.T. 3/26/2015 at 89, 107-08.

The defendant's comments provide evidence that the computer hard drives belonged to him and

that he knew the computers contained illegal content. In reviewing the totality of the




                                                                                                  10
circumstance, the evidence establishes that the defendant knowingly possessed material

depicting children engaging in prohibited sexual acts.

       Next, the defendant claims that evidence was insufficient to show that he possessed child

pornography for the purpose of dissemination. To be convicted under 18 Pa.C.S. § 6312(c), the

Commonwealth must prove beyond a reasonable doubt, that: (1) there was a depiction of an

actual child engaged in a prohibited sexual act or simulation of such act; (2) the child must be

under the age of 18; and (3) defendant knowingly sold, distributed delivered, disseminated,

transferred, displayed or exhibited the depiction to others, or possessed the depiction for the

purpose of sale, distribution, delivery, dissemination, transfer, display or exhibition to others.

Commonwealth. v. McCue, 487 A.2d 880, 883 (Pa. Super. 1985). The meaning of "disseminate"

includes the act of spreading, sending, fostering general knowledge of, broadcasting, or

publicizing. Commonwealth v. Hacker, 959 A.2d 380, 389 (Pa. Super. 2008) rev'd on other

grounds, 15 A.3d 333 (Pa. 2011).

        As discussed supra, the evidence sufficiently established the defendant knowingly

possessed the pornographic files. The evidence also establishes that the defendant knowingly

disseminated depictions of child pornography. On the 15 and 18 of September, 2013, Special

Agent Tabak downloaded two child pornography files from an individual using a Vuze file-

sharing program to offer child pornography on the BitTorrent Network. N.T. 3/26/2015 at 45-47.

Special Agent Tabak determined that the individual offering the pornography utilized an IP

address associated with the defendant's residence. Id at 159.

        An examination of an Apple iMac computer confiscated from the defendant's bedroom

indicated that this computer was used to download the two video files Special Agent Tabak

copied on the 15 and 18 of September, 2013. According to Agent Cook, these video files were



                                                                                                     11
searched for, downloaded, and viewed on this Apple iMac computer on September 14, 2013,

using a Vuze file-sharing program. Id. at 159, 160, 162.

       The defendant admitted to using the computers located at 743 Watkins Street, and further

admitted to using a Vuze file-sharing program. N.T. 3/26/2015 at 232. This Court concluded that

the defendant, who had two personal files stored on the same Apple iMac computer that also

contained the two child pornography videos Special Agent Tabak downloaded on September 15

and 18, 2013, was the user of the computer and the individual who offered the file for public

download on the BitTorrent Network. Therefore, the evidence is sufficient to establish the

defendant disseminated child pornography using a Vuze file-sharing program.

       For the foregoing reasons, defendant's judgment of sentence should be affirmed.

                                                                    BY THE COURT,




                                                                   Barbara A. McDermott, J.




                                                                                                12
Commonwealth       v. James McNulty, CP-Sl-CR-0003422-2014

                                        PROOF OF SERVICE

       I hereby certify that I am this day serving the foregoing filing upon the person(s), and in the
manner indicated below, which service satisfies the requirements of Pa. R. Crim. P. 114:

                             Philadelphia District Attorney's Office
                             Three South Penn Square
                             Philadelphia, PA 19107
                             Attn: Hugh Burns, Esquire

Type of Service:             Hand Delivery

                             John McMahon, Esquire
                             13 9 N. Croskey Street
                             Philadelphia, PA 19103

Type of Service:             Certified Mail




Dated: August 7, 2015



Amifj)---
Law Clerk to the
Honorable Barbara A. McDermott
