J-S79022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 KRISTIN DELORGE                           :
                                           :
                    Appellant              :   No. 937 MDA 2018

         Appeal from the Judgment of Sentence February 20, 2018
   In the Court of Common Pleas of Schuylkill County Criminal Division at
                     No(s): CP-54-CR-0000915-2016


BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                         FILED FEBRUARY 05, 2019

      Appellant, Kristin Delorge, appeals from the judgment of sentence

entered on February 20, 2018 in the Criminal Division of the Court of Common

Pleas of Schuylkill County. We affirm.

      The opinion of the trial court filed on May 11, 2018 sets forth the factual

and procedural history of this case. See Trial Court Opinion, 5/11/18, at 1-12.

We adopt that recitation of the facts and shall not repeat those facts herein.

At the conclusion of trial on November 1, 2017, a jury found Appellant guilty

of ten counts each of sexual abuse of children - disseminating depictions of

prohibited   acts   (18   Pa.C.S.A.    § 6312(c))    and    sexual   abuse     of

children – possessing material depicting prohibited acts (18 Pa.C.S.A.

§ 6312(d)). The jury also found Appellant guilty of one count of criminal use

of a communication facility (18 Pa.C.S.A. § 7312(a)). On February 20, 2018,
J-S79022-18



the trial court sentenced Appellant to an aggregate term of 18 to 36 months’

incarceration followed by ten years’ probation.1

       After the trial court denied Appellant’s post-sentence motions on May

11, 2018, Appellant filed a timely notice of appeal on June 8, 2018. The court

then directed Appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied on July 3,

2018 and the trial court issued its Rule 1925(a) opinion on July 6, 2018.

       On appeal, Appellant challenges the sufficiency of the evidence offered

in support of his child pornography convictions, as well as his conviction for

the criminal use of a communication facility. In particular, Appellant claims

that a single download of child pornography is insufficient to demonstrate a

knowing or intentional violation of 18 Pa.C.S.A. § 6312(c).         Similarly,

Appellant maintains that the evidence is insufficient to show that he

intentionally viewed or knowingly possessed child pornography in violation of

18 Pa.C.S.A. § 6312(d). Appellant concludes that because the evidence is

insufficient to prove that he violated §§ 6312(c) and 6312(d), the evidence is

equally insufficient to show a criminal use of a communication facility in

violation of 18 Pa.C.S.A. § 7312(a).

       We have carefully reviewed the certified record, the submissions of the

parties, and the thorough opinion issued by the trial court in denying

____________________________________________


1 At trial, Appellant was also convicted of several drug-related offenses for
which the trial court imposed concurrent punishments. Appellant’s drug
offenses are not challenged on appeal.

                                           -2-
J-S79022-18



Appellant’s post-sentence motions on May 11, 2018. Based upon our review,

we are satisfied that the evidence adduced at trial was sufficient to establish

each element of Appellant’s offenses beyond a reasonable doubt. Because the

trial court’s opinion adequately and accurately addresses the claims Appellant

presents on appeal, we adopt the trial court’s May 11, 2018 opinion as our

own. The parties are hereafter directed to include a copy of the trial court’s

May 11, 2018 opinion with all future filings pertaining to our disposition of this

appeal.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/05/2019




                                      -3-
                                                                             Circulated 01/25/2019 10:36 AM


       COURT OF COMMON PLEAS 0.F SCHUYLKILL C.OUNTY-·CRIJ'illJNAL DIVISION


 .COMMONWEAL TH OF PENNSYLVANIA                       No ..915.-16


               vs.

 KRiS.TIN DfLORGE, .
                       Defendant

                        Pfstrict Attorney's Qffice - for the Qommonweafth
                            · Frank R. Cori, Esquire -fer Defendant

                                          DECISION

 RUSSELL. J.

       On February 18; 2018, Defendant Kristin Delorge filed a motion for post-trial

relief contending that the evidence elicited at his October 31 - November 1, 2017 jury

trial wa.s insufficient to supportguilty verdicts against him on ten counts each of sexual

abuseof children by disserninatinq depictions of prohibited sexual acts (18 Pa;C.S.

6312(c) }. and by possessing rnaterialdepictmq such acts (18 Pa.C.S, 6312(d) ), and on

one count of cnminal use of comrnunioationfacility (18 Pa.C.S. 7.312(a) ). Defendant

had also be.en found guilty of one count of possession With intent to. deliver a controlled

substance - marijuana (35.. P.S.. 780�113(a)(30} ). two counts of possession of a

controlled substance � rnariiuana and methamphetamine (,35 P.S.. 780-113(a}(16)) and

one count ofpossession pf drug paraphernalia .(3.5 P .s. 7BQ--113(a.)(32) ). Defendant

does not contest the sufficiency of the evidence oh the controlled

.substance/paraphernalta verdicts.

       Defendant was sentenced dil February 20, 2018 to serve 3         to   12 months'

inc:.arceratJon on Count 1 - possession With intent to deliver: 18 to 36 months'

incarceration followed by 5 yeats' probation on Count 2 - dissemination of child


                                               1



                               Exhibit B - Page 1
                                   pornography; and, concurrent terms ofincarceration of 18 to 36 rnonths or of 12 to 24

                                   months on the balance ofthe dissemination offenses (CO.LJ.lits 3 -1 j_).1 Sentences were

                                   not.irnposed on the possession of child pornography offenses (Counts JR..::.2JJ which

                                   were found to merge for sentencing purposes. Defendant was sentenced to serve 5

                                   years' prebation. en Count. 2.2 - criminal use of communication facility- to run

                                   consecutive to the sentence on Count.2.

                                         Finally, Defendant was sentenced to serve terms of incarceration of 1 to 12

                                   months on both Gounts.24 and 25 - offenses of possession of metharnphetamirie and

                                   drugparaphernalta. respectively. The second count of possession ofa controlled

                               .substance (rnarquana) (Count 2�) was found to merge for sentencing purposes. With

                               the exception of the censecutivesentence of probation on Count 22. all sentences

                                   imposed were to run concurrently with that imposed on. Count 1 =possession with intent

                               to.celiver a controlled substance (marijuana).

                                         Defendantwas directed to file a brief in support of his motion setting forth the

                               basis for his claim that the evidence had been insufficient                        to prove the Commonwealth's
                               case on or before March 12,.201                  a.   In his March 141 2018 brief, Defendant arques that

                               the evidencewas insufficient to. prove thathe had disseminated any depiction or that he

                               had knowingly possessed the depictions. Further. Defendant raises the additional clann

                               that the Commonwealth's evidence                      was against the weig·ht of the evidence..                      Ori March

                               15. 2018 �· the C cmmonweatth asked for addition al time to file                        a responsive brief

                               ---- ··- ..-.,.               ..,.
                               1
                                 · All child por-r.qgrapl,y counts .ha.d been graded accordtnq to whether the depictions at. issue. exnlb\!ed

                               inoecent.contact.witha child         as
                                                                     defined 10 18 Pa.C.S, 3.101. Per 18 Pa.C'.S 3t01, indecent.centactis
                               ··[a.Jny touching of th.e sexual orother .intimate parts of the person for the purpose of 9rOU$ihg or gratifying
                               sexual desire, in any person." in accordance vJith'l8 Pa.C.S. 63T2(d;1)(3); offenses involving depictions
                               otindecent contact shall be classified one grace higher than those without such con tac: depicted: The
                               longer terms .of imprisonment were. imposed on the. higher graded offenses.

                                                                                              2



                                                                                Exhibit B-Page2
                     __________                      __;._               ···--·····------·---- -· ---- �-----,..._ -··--- ----·----
                                                                         -----�-                                                      ,,   _   _,
.................   -.......-··-····----·-·-·----·--.--·----·--··-···-·-·--·-·--·------------
              because the triai prosecutor was no longer with the District Attorney's Office and the

              current prosecutor needed a transcript of the trial testimony, which had then been

              ordered but not prepared, to .address Defendant's arguments. The Court granted the

              motion. The Commonwealth subsequently flied its responsive brief.




                    The Crimes Code defines the offenses and elements at issue asIojows:



                                                  Sexual abuse of childre.ri



                           {c) Dissemination of photographs, videotapes, computer
                             depictions and filrns.s-Any person vi/ho knowingly sells .
                           . qistfrbut�s. delivers .. dlsserninates, transfers, displays or
                           exhibits to others, or who possesses for the purpose .of
                           sale, distribution, delivery, dissemination, transfer. display
                           exhibitiontc others. any book. magazine, pamphlet .. .stice.
                           photograph; filr.n, videotape, computer depiction or other
                           material depicting a chiid under the age of 18 years
                           engaging in a prohibited: sexual act or in the simulation of
                           such act commits an offense.

                           {d) Child pernoqraphy=-Any person who intentionally views
                           cir knowingly possesses or controls any book, magazine,
                           pamphlet. slide, photograph, film. vrdeot�pe. computer
                           .ceprofton or other material depicting. a child under the age
                           of 18 years engaging in a prohibited sexual act or in the
                           simutauon of such actcommits an offense.

                           18 Pa.C.S. 6312{c}.(d).



                                          Criminal Use or Communication Faci!l!Y


                           (a} Offense defined.v-A person commits .a felony of the.

                                                             3.


                                              Exhibit B- Page 3

·---......._.,..... ,_.. _ . ....-. .-········-----------·----------------------
         _,
                                                                                              ·---·    ·-·····----.-... -
             third degree if that person uses a communicatiorr
             tacihty to cornrnit, cause or facilitate the commission or
             the attempt thereof of any crime which constitutes a
             felony under this title or under the. act of April 14,. · 1972
             (P.L. 233. No.. 64), known as The C-ontrolled Substance.,
             Drug, Device and Cosmetic Act. Every instance where
             the. communication facility is utilized constitutes a
             separate offense Under this. section.




             (c) Definitron.�-As used in this section. the term
             "cornrnunication facil'it{ means a public or private
             instrumentality used or useful in the transmission of
             signs. signals, writing. images; sounds, data or
             intelligence of any nature transmitted in whole or in
             part. including, but not limite.d to, telephone, Wire,
             radio. electromagnetic, photoelectronic or photo-
                               or
             optical systems the mail.

             18 Pa . .C.S. 7'512(a).(c).




                     General requirements.of Culpability


      (a} Minimum require merits of cµlpability.��Excepf as
      provided in section 305 o.f this title (relating to limitations
      on scope pf culpability requirements}; a person is. not
      guilty of'an offense unless he acted intentionally,
      knoyvingfy; recklessly or negligently, as the law may
      require, with respect to e.ach material. element of
      the offense.

      (b) .Kinds ofculpability defined.--

             (1)A person acts intentionally with respectto a
             material element of an offense when:

                (i) if the element,nvolves the nature of his
                conduct or a resultthereof it is his conscious
                object to engage in conduct of that nature or
                                 a
                to cause such result; ahd



                                               4



                                 Exhibit B - Page 4

· ·········"-----·--··-·------·--------------------
                                     (ii) if the element involves the attendant
                                     circumstances, he is aware of the existence of
                                     such circumstances or he betieves or hopes
                                     that they exist.

                             (2} A person acts knowingly with respect to amateriai
                             element of an offense when:

                                      (i) if the element involves the nature of his conduct
                                      or the attendant circumstances, he is aware that
                                     his conduct is of that nature     or that sL1d1
                                     circumstances exist: and

                                      (ii)if the element involves a result of liis conduct.
                                      he is aware that it is pra.ctically certain that his
                                      conduct will cause such a result.

                             �·   . .. .

                             18_Pa .. C,_§. 302(aL@.:




                                                           Trial Evidence

                      In his brief. Defendant argues that the charqes.aqainst him resulted from a

              Pennsylvania State P6Hce investigation $urveilling the. internet           for Qhild oornoqraphy
              which   found th atone. file containing twenty images of chifd pornography had been
              downloaded to an internet protocol address .traced              to Defendant.   Defendant claims that

              no evidence exists that the images had been viewed or forwarded                 by him and that no
              other evidence of pornography had been found               on   Defendant's computers.

              (Oef�ndanrs post.:.trial brief, pg. 2). Further. Defendant claims that the

              Commonwealth's only evidence indicates thatthe file In question had been downloaded

              to a networkwhich others could access and the only known person who had viewed it




                                                                  .5



                                                    Exhibit B - Page 5
..-,   ------·---·---    ------------------------·
                              wasthe irivestiga.ting state police officer. A review of the relevant evidence follows to

                               place the issues as argued by Qe.fendant in context .




                                           . At trial, the Commonwealth presented testimony .on the child porncqraphy aspect

                              of the case from Permsytvanla State Police Corporal John Powis who had been present

                              and ihtervievved Defendant on March 8, 2016 during the police search of Defendant's
                               home when various electronic devices were confiscated from inside the home.

                              Additionally, the Corntnonwealtb called Pennsylvania State Police Sergeant Jphn

                              o·NeiJJ. Supervisor of the Computer Crime Unit and Bureau of lnvestigatio.n;                         Gerhard

                              Goodyear. retired Pennsylvania State Police Corporal last                            assigned to the Computer
                              Crime Unit: Robert Krehling, Pennsylvania State Potice digital forenstcexaminer:

                              together with Defendant's teenage son. Defendant testified in his .own defense.

                                            Gerhard Goodyear, since. retired, was a Pennsylvania State Police Computer

                              Crime Unit undercover investigator of possession and distribution of child pornography

                              offenses. Goodyear provided de.tailed evidence to the jury about the use and operation

                              of computers.             His approximate four hundred police investigations involved file sharing

                              or peer-to-peer networks by which two or more· computers on the. samenetwork share

                              files with alt.other persons utilizing.compvter.s on that network. Various reasons.exist

                             for a computer user to desire to utilize. a file sharing network, including the avallabillty pf

                              material and efficiency afforded a user in. retrieving desired material' on tl:,e internet

                              Goodyear explained that if a person Wants to be part of a file sharing network                        to obtain
                             child pontogra:phy, he has to search t.he internet for                      a specific program that.allows him




                                                                           Exhibit B - Page 6
                                                              ---·-·-·-····· . ··--·-··-··-·-··-·-···..-·...--....---·-··---
····-·····--··-.. ····---.. -·-·..··-..-----·····-..   · ·-----------------------------
to join p peer-to-peer network, After finding and selecting the desired proaram, the user

must download it and install it on his computer. Next, he must set the proper

configuration on nls computerto make the program function for the network he desires

to join. Thereafter; he must conduct searches on the computer to find those

pornographic files in which he is interested. He would .do so by typing and entering a

search. term in the search window that appearson his computer screen. Upon receiving

a Hst of files in response to the search term he entered he would then select the file or
                                                           .e




files that he desires to receive and review and then .cJo.wnload those fries onto his

computer.

       Specific search   terms for child pornography are trequentty used to locate tiles

¢.orifaining that contentby those interested in. doii1g so, incltJding "PTHC" {pre-teen rratd

core) and ''PTSC'' (pi'e-teeri soft core). If such terms aretypeo on generally used sites

by computer users - for example, a Google site - messages will appear vJarhing the

users "Get Help!" that chjlo pornoqraphv is a crime. However, such material is
accessible. by other means.

       According to Goodyear; mostftle sharing programs are specific         to one network.
However, Shareaza - the program Defendant utilized - .is unique in that it is a specific

program thatatlows a user to search several networks at the same time .. Shareaza has

a "setup wizard" for a user to follow   to install that program which   includes various setup

screens with questions thatmust be answered by the user; including whether he wants

to .share fileswith others using the peer-to-peer network.      After the program is installed

by the user. a. window wHI appear on the user's computer to allow the user to enter a
search term, When the search term is typed on .the. screen by the user, he musthit



                                               7



                                 Exhibit B - Page 7
"enter" to continue the search. Names of files matching the search term would then be

displayed on the user's computer screen. If the user finds a file he desires                         to retrieve,
he must hit "oownloac" to receive it    on his computer.                   If the user places rnateriat    that he

downloads
    . . . into shared
                    . . files
                            . tnatrnateriaf
                                 .          is . then
                                                   .    . .. . .. to .be retrieved
                                                      available           .  .  .  from his
                                                                                          .


computer by other users of the peer-to-peer network.

       DLiring his investigation, Goqdyear utilized .the etli1ul.e network. Police do not

share fil�s on that.network but simply use itto search the internettor known files that

have been previously identifiedas child pornography-related. Po!lce use th.e unique

hash values of those known files.to identlfy ccmputets that are sh�;Hing c.hdd

p9mo.graphy .and then d.own10130 the files retrieved from those users' computers vta an

automatedprocess      to the police computer..         The software police use conducts only

;•stngre source downloads" so that all parts. of each download are retrieved from. one.

user· source rather than from multiple users who are using the peer-to-peer networx.

Police can thereby be assured that an t;ntire file which they find ahd do\-v.hload came

from one particular computer:

       Herein. on December 20, 2015, the potice investiqative computer located antj

then downloaded suspected files of child pornography which Goodyear reviewed. He

dete�rnined the IP address of the computer from Which the suspected                              pornography had

been transferred and found that the service provider for the user of that computer was

Frontier Communication.. Then he obtained a court order to retrieve information from

Frontier Communlcatlonto identify the subscriber of the service as of the date: and fin1e·

that the child pornography had been received from that computer l:).y police. Frontier

Communication indicated that tile subaoriber wae DefendantKristin Delorge of 131



                                                   8'



                                  . Exhibit B- Page 8
                   �·--.-------,          �   _ ..__
                                                   ,    ..__   --···--····-·--�-·-···-, �.,- .
                Breisch Road. Ringtown. According to Goodyear, a computer utilized. under

                Defendant's Frontier Communication subscription had been turned "on" and the

                Shareaza program had been running on that computer             at th� time ponce received the
                suspected pornographic material from          iL

                        Goodyear originaliy·dbWriloadedtwenty irnaqes of suspected child pornog.raphy

                lo start his investigation. Atterthe search Of Defendant's home; Goo.dyearwas provided

                ten files recovered by pouce from one of Defendant's computers. The computer was

                located on a. shelf in      what was determined to be   Defendant's bedroom. One file

                recovered frorrrDelendanf s computer matcrrsd a file Goodyear downloaded during his
               i n iii al investigation.

                        Robert KrehlJng is a digitaJ forensic: examiner of electronic storage devices with

               the Pennsylvania State Police. He was present in a mobile examination van located

               outside Defendant's home on Marer. 8,,. 2016 when police searched the home.

               Pennsylvania State Police $ergeant John O'Neill identified evidence fo1Jn.d at the scene

               of the search ofDefendant's home, including various electronic devices which were

               provided    to- Krehliilg.   While ori site, Kreh ling examined the contents of all electronic

               devices police.found at the home .. One laptop computer, a Dell latitude, was found to

               have files .containing suspected images of child,pornography. Eight images           were in a
               file named PTHC Vietnamese Child Brothel and two irnages             were   from a file named

               PTS,C Y: Salome. By analyzing the metadata on Defendant's computer, KrehHng

               determined that the PTHC Vietnamese Child Brothel file had been. created and

               downloaded      onto Defendant's.. computer at 1 :40 a.m. on December 19, 2015. The last
               access of thePTHG Vietnamese Child Brothel fri'.)age .file had occurred at 1 :4.4 a.rrr. that



                                                                   s

                                                    E�hibit B- Page 9
      �-- . ----------·-·-··-..·-·
,,_    _,_,,_,_,,_,_,
           ,       ,  - ----·-·---
                                                 -"·-----.---..-----·
                                                      -----------·-·-··--·-------                               _______
                                                                                                                      ,,_
                                d;:.iy on Defendant's computer. As recorded in the metadata, the. PTSC Y Salome file

                                was created, dowrtloadsd and                accessed ah Defendant's computer on December 19.
                                2015         at 12:22 p.rn.    After the images were dcwnloaded oh Defend ant's computer, they

                                were then offered to be shared with others on the rietwork."

                                               Pennsylvania State Police Corporal John Powis was present' when the search

                                warrant was s�rved at Defendant's home on March                       a. 2016.   Corporal Powis

                                interviewed Defendant while the search was conducted. by other police. After various

                                illegal drugs and paraphetnalia were located in an upstairs bedroom whlch Defendant

                                indicated .was his . Defendant.told CorporalPowls that all of the items were his for

                                personal use. Defendant a1$0 told Corporal Powis that he had internet service at the

                                home, that Frontier Cornrnunicatlon was the provider and that his router and computer

                                were password protected. Additionally, Detendant stated thathe was aware of file

                                sharing programs and that he had used                      them in thepast.
                                              W.hen Corporal Powis described to Detencant an image and the file name from

                                which the image had been previously downfcaded.by Corporal Goodyear during the

                                latter's investigation - namely, the file ''PTHC Vietnamese Child Brothel" and the image

                                being thatof a          prepubescent child about four to five years old appearing completely
                                nude While sitting on and pe rtorm: ng oratsex Oh a nude ad u It male                 - and asked   if

                                Defendant recognized them, Defendant said that he did, that he had seen the i1i1age. on
                                    .                                                  .
                                his son's laptop in the past but that he did not do anything about it and                 was not able to
                                tell CorpcralPowiswhy he had not. Defendant did not tell .Corpora/Powis that his son

                                had access to his (Defendant's) computer. When Corporal Powis told Defendant that


                                2
                                        Ten.of the images found on Def.endanrs computerand exhibited to.the j:vry need net be describeo a$.
                                Defehdam         has riot contested their constituting child pornography.
                                                                                             10



                                                                           Exhibit B - Page l O
.., ...,...,,,.....   ·····---,,--·--··-·,.----·---
t!1e laptop found in Defendant's bedroom had images of child pornoqraphy on                         rt, that

those. matched the ima.g.es that.had been downloaded i;:,y Goodyear in his lnvestiqafion

and   that the file sharing program Shareaza was associated with that laptop,                    Defendant

stated that the laptop was his. and thatit it was on his computer, "Ill take responsibility



        In addition to thelaptop computer located i11 Defendant's bedroom. police found
various electronic devices in the home, including a l�ptop in anoiherbedrccm together

with multiple computer parts and towers. Defendant also told police that he. repaired

computers.

        Defendant's tcurteeo-vear-crd son testified that              at the time of the downloading
(December    19. 2015}, he would have beentwelve years. old and did not reside with
Defendant Wheri he visited his father, the child took his own computer to his father's

home to use for gaming and Videos. He had not been familiar with the program

Shareaza and had not used file sharing. He further testified that he had not

downloaded a vietnarnese Child Brothel file an.d that hehad used Defendant's

computer only One time for gaming.

        Defendant testified in his own defense . According to Defendant he had been

employed outside the borne atthe tnne of the incident in addition to havinq performed

computer repair work for people at hls home. Defendant stated that he could install

computer hardware .and software. Defendant did not remember being asked by

Corporal Powis about the internet address of a. child pomoqraphy site but                      he did r�call
having heard the description of the porno.gi'aphi·c depiction. Defendant claimed recallfng

that his son and his nephew had been at his home the weekend .of the December, 2015



                                                 11



                               Exhibit B - Page 11
                     ----            -··--�-·--··-·-- ..... ·-- ..   --:------··-.---·-·   �
                                                                                                 ·---·------·---
downloading and that it was possible that they could have been using his computer,

Defendant also stated that when talking to Corpora! Powis. he had taken responsibility

for everything in the house but that he had not known that Corporal Powis was referring

to child pornography atthe time.

         Defendqnt .claimed that the subject laptop computer was in his bedroom on a

shelf.   that it was. "for the kids to play video games and that everyone in his home had
                                         1'




access to his computers. Defendant testified that he had been familiar with tue sharirtg

prosrams, had used them, was aware that when installing such                                      a program there is an
instauaiion rnenu that must be gone through to install it. that he had used Shareaza in

the past and that he, was familiar with the interface of the proqrarn. Defendant further

testiflec that he knew that when a person downloads flies using a file sharing program

thatthose files. would be. "shareable." Defendant also stated that his computer and \Ni-

. Fi had both been password protected,




                                                             Discussion

         In   his   post-trial brief, Defendant questions both the sufficiency and weight of the

trial evidence. A weight of the evidence. challerrqe rnay be preserved by raising the

claim .in a motion for new tri�.1 orally on the record orln written motion before sentencing

or in a post-sentence motion; Pa.R.Grim.P. 607(a}.. Defendant did notraise the weight

claim before sentencing or in his post-sentence motion. Although Defendantfirst.

mentioned · the issue in his post-sentence brief; the .Court has. evaluated the claim                              ano
finds no mentto the challenge.



                                                                     12


                                           Exhibit B - Page 12
                       ...___     --.._ ... -•••,- -·-v-v ... ·--......... _.___,,..,..   ,   �


                                ,----------------------�,--------·---,--·-----
          The jury was free        to believe all, part or none. of tne trial evidence a·nd determine
witness credibillty, In his argument; Defendant does not �ttack the credibility ofthe

    Commonwealth witnesses or the reliability of the evidence they offered. Rather. his

    argument appears to be thatthe Court should nullify the verdict due to evidence that

    indicates Defendant had oct accessed the child                      pornography after December 19, 2015,

The Court con:.sidr:;re.ci that evidence when sentencing De.fend ant at                                     the low end of the

mitigated range of the sentencing guidelines on the child pornography dissemination
charges a rid lmpos fng all of those sentences to n,.i n concurrently with the sentence 01i

· the controlled substance felony offense.3 Nevertheless, such consideration does not

support finding tha.t the verdict was agair.ist the. w.eight of the evidence as. the verdict

was     not contrary to the evidence, Comntonweetthv. Gibs�m, 720 A.2o 473 (Pa. t998)

(courtmay award new tri�I            in its discretion if verdict so. contrary toevldence as                           to shock

sense orjustice).

          In evaluating a sufficiency of the evidence challenge, a court is to determine

whetherthe proofat tria! and. the reasonable inferences arising therefrom. when viewed

in the light most favorable to the verdict; winner- the Commonwealth - support the

conviction beyond a reasonable doubt. In a jury trial. if sufficient record evidence exists

to have allowed the fact-finder to find every element of the crime at issue establlshed

beyond a reasonable doubt, the evidence is sufficient to sustain the verdict. In

determining the sufficiency of the evidence. a court is not to re-weigh it as the jury had

been free to believe all, some or none of the evidence it heard. The Commonwealth's

sufficie.ncy burden maybe met by direct or circumstantial evidence or a combination of


3
  The trial evider,ce does not suppot.t Defendant s argume.r,t.ihat no other .pornogfaphy ·'of any klild'' was
found on his computers,

                                                              13



                                          Exhibit B - Page 13
                         .......     ·-·· .-··-····-.·---····------··'"'•''-'··---·--·---·······---·-
                                            .                                                           .
both. Unless it is found that the evidence received is so inconclusive and weak that no

proba.oility pf fact could have been drawn from all the circumstances, doubt as to      an
accused's guilt must be resolved by the jury. Comn.1g.11wealth v. Rodriquez, 141 A.3d

52.3 .. 525 {Pa. Super. 2016).

       In his brief, Defendant claims that the Commonwealth's proof failed to establish

that Defendant knowingly downloaded depictions of child pornography sc          to be

convicted of knowingly possessing or controlling a computer depiction of such material

in violation of 18 Pa.C,s... .6.312(d). The evidence the.iurv considered included testimony

that Defendant installed the     file sharin9, proqramSnareaza witb access to multiple
networks on hts computer. Not only would one installing such a program be required to

go through. an tnstaltation process during which the user is informed of the nature of the.

program and of fire sharing but Defendant, a computer repairman, acknow.ledge!:l both

to police and while testifyin� at trial about his knowledge of-computer operation, of his

havinq used fil� sharing programs including Bhareaza, and. ofknowihg how they

operated ..

       To download child pornography; a computer user would firstbe required to type
terms in a search bar for the kind of material the user was .intending to find_ Files cif

child pornography often are located using various known particularized search terms

including PTHC and PTSC. After the computer delineates flies that match the          search

terms th at had been entered, the user would not· have access to or possess the chi id

pornography contained in any file until the. user actually selects a file or files. he desires

andthen downloads it/them onto his owncornputer. Herein, Defendant's computer.

which was password protected. was found on a shelf in his bedroom, Files from chiid



                                               14


                                  Exhibit B - Page 14
                      �--�---··----· ..   ··----
                     pornography sites we.re found on the computer and ten of the depictions located in two

                     of the files were exhibited to the jury. The jury heard Defendant's son -who Defendant

                     suqqested may be to blame - testify that he used Defendant's computer only one time

                     for gaming and that at the. relevant time he had not beerifamiltar witrr file sharmq,

                     Shareaza or a file named. PTHC vietnarrrese Child Brothel.

                              Defendant also claims that the evid.e.nce                           was insufficient Jo prove a violation of 18
                     Pa.C.S. 6312(c) because.tre evidence did net establisf thatthe child pornography had

                     been disseminated from Defendant's IP address sn.d that the only known person.to

                    whom the depictions had been disseminated had been the investigating police officer.
                     However, Commonwealth wrtness.Oerhard Goqdyec1r specifically testified that based

                    upon the program the police utilized in their investigation. he. knew that                                      the child

                    pcrrroqraphy depictions                 aU came from           Defendant's computer IP address. Further. the

                    computer in Defendant's bedroom was the only .devlce in the home which had been

                    confiscated during the police search which had the same irnaqes. fo.und during

                    Goodyear1s initial police investigation. Section 6312(c) prohibits the knowing

                    dissernmatlon of the prohibited material or the possession of such materialfor the

                    purpose of dissemination. Oefenoant understood that the Shareaza program provided
                    for fil� sharing of material on one's computerby making it available to other computer

                    userswhowere n.1nning the same prcqrarn. The jury wasfree to believe the evidence

                    of the Commonwealth.along with Defendant's incriminating statements.and testimony in

                    determining whether the computer-savvy Defendant - who installed the file sharing

                    program while       wen aware of what such program involved, sought, then downloaded and
                    then placed child pornography in files on rus computer                                   to be shared with others -


                                                                                          15


                                                                     Exhibit B - Page 15
                                                 '·�-   ·----- .... -··- -----·--� ....-...... ......   ,.      ·�--   . � ·�·
·-·---······ ·········-·-·------·-------·-·---                                                                                   ·------        ·-·-·-·--·-··-··----..·---···-·-
                           kn.oviingly disseminated or possessed the material for the purpose of disserrnrration In

                           this regard. one acts knowingly if "he is aware that itispartlcularly certain that his

                           conduct will cause such a result"                     C1..�_ PaJ;.a:.�·   3.02(bl ).

                                       Defendant further argues that subsection (f).of 18. Pa.C.$.. 6312-4 ofthe Crimes

                          Cede precludes his conviction because the evidence only established that                                       police had

                           i·eceived the child pornoqrapny Jrorn Defendants computer and they were "quatifred" by

                           law to view the material. In relevant part, 18 Pa.C'.S: 6312 ex¢epts ''[a]ny materia! that

                           is viewed c possessed, controlled, brought or caused to                                be brouqh; ihta this
                           Commonwealth, or presented, for a bona.flde educational, scientinc, governm.ental or

                          judicial purpose." 18 Pa.C.S. 63.12(f}{'!J Although depictions uti.lized by ponce

                           investigators and at trialconstitute matertal.excepted from crimina! prosecution, contrary

                          to Defe.ndanfs argument that same material in the possession of Defendant was                                        not so
                          excepted.

                                      Finally. Defendant cites several cases vvh.ich he. argues support the positions.

                          raised in his brief First. he claims that in Commonwealth v.                                 kushmar,ik; 154 A. 3d 862
                          (Pa. .Super. 2016), the Pennsylvania Superior Court found that the.acnon of the

                          appellant had not enlarged the market for .child pornography and was not the kind of

                          conduct the.raw sought to sanction - whith Defendant claims is similar to his situation.

                          First it must.be noted that the Superior Court issued a nort-precedential memorandum

                          opinion in that case with the citation Defendant utilized                           in    his brief actually being a
                                                                  �--
                                       ·---..... ,.........,.......,_ .....
                          .: The Crimes Code pr0.vides m pertine11i pan:
                                   (f) Exceptmns. --This section does not apply to any 0f the fdllcwing:
                                   ··      · (1) A'i'ly rnaterial that is. viewed. nossessed, cqrfr.oiled,
                                             bro.ug tit or'causeo to .oe b.rought into m.1s c e-nrnohweattb,
                                             or presented, for a bona fide educational, scientific,
                                             gover.nrner.tal or Judicial purpose,

                                                  1.8. Pa,C,S c., 6312(1)(",l.

                                                                                            16


                                                                           Exhibit B- Page 16
................... """·-·-------·..···-----·--···-···--   ·----
  reference to atable rather than a published opinion .. Per Pa. Superior Court LO.P.

  65. 37, such an opinion ls not "to be relied upon or cited by a Court or a party in any

 .other action or procesdinq" except as otherwise. delineated � none of which exceptions

  apply.
   .     in thtscase.".

                        Defendant next clalms that based upon QQ[!]'fiiom;vealth v.,_.lsk'Jt 83 A.3d 457

  (Pa. Super. 2013). ··a.lssernination" under , 8 Pa.c.s ..5903(c) requires.. some affirmative

  act by an accused enc that the Cornmonwealtn's                             evidence estabushec that the images
  1n this case were never viewed and the file was neveropened except by the police

 investigator, Consequently. Defendant arques,                             no proof existed �hat th� irnaqes wer�
 depicted on his computer. In Levy, the question before Superior Courtwas whether

 sending a minor an e-mail with                       a. link to   pornographic materials constituted

 dissemination of explicit sexual materials                         iri violation of 18   Pa.C.S. 5903. Superior

 Court ceterrnlned that an e-mail sent containing such a link constituted dissemination of

 the prohibited materials and the fact                       that "the recipient musttake the cursory step of
 clicking on the link" did not "remove that !ink from the                         general definition of 'explicit
 sexual material'." Levv.                    supra.   at 46.6.
                       Urilike1n Levy; Defendant was not convicted              of an offense under 18 Pa.C.S�
 5903{c}. Rather, Detendantwas convicted.of violating 18Pa.C.S. $.312(£} ahd (d)

Which prohibit .:1 person from intentionally viewing or knowingly possessing or controllinq.

a prohibited depiGtion                     and   of the>knowihg dissernination er-possession of such deetction'

for purpose of disse.rriiriatipn. The evidence established that at 1 AO a.m. and 12:22

p.m . on.December 19, 2015, a user of Defendant's password protected computer

............-, ....·--···-   -, ...... ,--.·.----
� The conduct at issue in the non-preceeentlat case also di.a not involve deJ)ictions ofiprol1ibited sexual
acts" clS herein.

                                                                     17



                                                    Exhibit B - Page 17
           �-· -···-··-----.. ·-- ·----· --·-· �----- _,_
   ---------�                                                               __ ·-·-··-----.
 searched for, selected and then downloaded files. of chHd pornoqraphy onto Defendant's

 computer, with two ofthose files identified with the names of PTHC Vietnamese Child

 Brothel and PTSC Y Salome. Subsection (d) of t.8             Pa.:c.s.   6312 prohibits both the

 intentiona! viewing and knowingly possessing or controlling the prohibited material. The

 evidence establishes Defendant knowingly possessed or controlled the. material.

 Further; the police investigator received the material using the peer-to-peer network

 While Defendant's computer was turned "on" and Defendanrs
                                                  .        file·:. -:s..haring program was
 running. Via that. peer-to-peer network. the depictions         wen�. uploaded    from Defendant's

 computer and transferred to the police computer upon which the depictions were

 downloaded.

          Finally, Defendant cites Commonwealth v. Diocloro, 970.A.2d 1 HJO (Pa. 2009}for

the proposition    that downloading, saving or printin9. images of child pornography must

be established and tha! the Commonwealth only proved that an unopened file had-been

downloaded by Defendant- not that he knew of its. existence. Contrary to Defendant's

argument,      however.   evidence at trial included testimony that on December 19; 201.5 at

 1:40 a.m., a file named PTHC Vietnamese Child Brothelcoritc1ining pornographic

images of childrerrwas selected from the internet, a.fite was created on Defendant's

computer f9r the images and the images were dowruoaded phd accessed on hJs

computer. Similarly, another file containing child pornography with the name PTSC Y

Salome was selected, and onewas created, downloaded and accessed onDefendant's

computer on December 19, 201.5 at 12:2.2 p.m, The Pennsylvania Supreme Court in

[)tQ.g_gro,   stated that the Commonwealth need not prove an accusedpossessed Child

pornography to establish      a violation 0.f .18   Pa.C.S. 6312(d) if It can prove.Ihat he



                                                    18


                                    Exhibit B ..... Page 18
knowingly controlled it as the intent ot the statute· tsto protect children by prohibiting the

production and trafficking of child pornography .. 1.Q.,, at t107. The trial evidence does not

support Defendant's argument that the Commonwealth's proof failed                      to establish his
violation of the law.

        In light of the foregoing, the evidence at trial also sufficiently established that

Defendant. used    a comrnunicatton facility (as defined in 18 Pa.C.S:.. 751J1£1) io commit.
cause or f�cilitate a felony. Besides his argument about the sufficiency of evidence on

the underlying felony charges. Detendantdces not argue any lack of sufficiency with

respect   to any particular element of the criminal use of communication facility offense.
{18Pa.C.S. 7512(a)).

       Because Defendant'spost-trial motion, as supplemented by his brief, is found to

lack merit it.is beirig denied.




                                                19



                                  Exhibit B - Page 19
                         -· ·--· __ .. _
                                      ,    ·
                                          _._·-----... ---··
                                                      ,,.      ·---·-··_ ._.�..   -·
       COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY�-CR.!MINAL DIVISION


COMMONWEALTH OFPENNSYLVANI.A                                 No .. 915-'16


               vs.
KRISTIN DELORGE.•
                       Defendant

                       District Attorney's Office� for the Commonwealth.
                             Frank R. Cori, i;squire • for      D�f�ndant

                                      ORDEROF COURT

RUSSELL, J.

       AND NOW, this                  day of May, 2018,.upon.consideratioh bf Defendant's post·

sentence motion and pursuant to the Decision iss.ued this day. it is hE=1'eby O�OERED

Defendant's post-sentence motion is O.ENIED.

       DEFENDANT      rs NOTIFIED THAT HE HAS THE RIGHT TO APPEAL THIS
DETERMINATION TOTHE PENNSYLVANlA SUPERJ.OR COURTWiJHIN TH1RTY(30)DAYS

QF THE DATE     OF ENTRY OF THIS ORDER. D.EFENDANT HAS THE                      RIGHT TO THE

ASSISTANCE OF COUNSEL IN THE PREPARATION OF ANY APPEAL. IF DEFENDANT IS

INDIGENT. HE MAY APPEAL 11\J FORMA PAUPE.RIS AND oerAINREPRESENiATION

FROM<THE SCHUYLKILL COUNTY OFFICE OF THE PUBLIC DEFENDER OR REQUEST

THE COURT TO ASSIGN COUNSEL.AND PROCEED WITH THE APPEAL.At NO EXPENSE

TO DEFENDANT FOR COURT CQST$ OR ATTORNEY FEES.

       Defeneaat may remain subject    to the previously imposed bail conditions in the event he
files a timely appeal. However, if Defendantdoes not file       an appeal \•Vithin thirty (30) days of
entry of this order. Defendant's release on bail shall Immediately terminate and heshall




                                                1




                                  __
                        ···---- Exhibit B- J>age20
                                       ....._       ,..
                                                          -··-----·---· ... -..
                        surrender to the Schuyfkil! County Prison to o.egin the service of the terras otmcarceraflon

                        lrnposed at his sentencing.


                                                                                                              BY THE: COURT.

                                                                                                                                        .;,/··_/
                                                                                                                                       ·'   .,,,
                                                                                                               . /�,. ". ·�. ":!··.: ··.. ,.�..·� (.:
                                                                                                             ______._. .. _._            �
                                                                                                                                     , ·_-_                                                       J.




                                                                                                                   2.




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                                                ..... ·-·--...........,......._. ............ ...   ...... , .........,,....... ,-...·-·--····-·-----"'·-··-·---·-· ..   .   ----..-... ·····-.
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