J-S24011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KYLE J. STEVENS                            :
                                               :
                       Appellant               :   No. 1078 MDA 2017

            Appeal from the Judgment of Sentence January 24, 2017
    In the Court of Common Pleas of Lackawanna County Criminal Division at
                       No(s): CP-35-CR-0001694-2013


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

MEMORANDUM BY OLSON, J.:                               FILED AUGUST 24, 2018

       Appellant, Kyle J. Stevens, appeals from the judgment of sentence

entered on January 24, 2017, as made final by the denial of post-sentence

motions on June 30, 2017. We affirm.

       The factual background and procedural history of this case are as

follows.    On July 1, 2013, Appellant was arrested following a criminal

complaint filed the same day charging Appellant with three counts of sexual

abuse of children (dissemination),1 twenty counts of sexual abuse of children

(possession),2 and one count of criminal use of a communication facility.3 The

Commonwealth formalized the charges by filing a criminal information on

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1   18 Pa.C.S.A. § 6312(c).

2   18 Pa.C.S.A. § 6312(d).

3   18 Pa.C.S.A. § 7512(a).
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September 16, 2013. Appellant’s charges stemmed from an investigation by

the Office of the Attorney General’s (OAG’s) Internet Crimes Against Children

(ICAC) Task Force, which operates under the OAG’s Child Predator Unit. The

ICAC Task Force uses proprietary software which locates the Internet Provider

(I.P.) addresses of persons who download and share child pornography using

the Ares peer to peer (P2P) file sharing program. From March 10, 2013 to

March 11, 2013, Agent Nicole L. Laudeman identified and downloaded three

child pornography videos from an I.P. address registered to and paid for by

Appellant.4

       Agents began surveillance on the home registered to the I.P. address,

and determined Appellant had moved. Agent Laudeman obtained a search

warrant for Appellant’s new address, and executed it on July 1, 2013. After

seizing several electronic items during this initial search, the agents spoke

with Appellant at the Dunmore Police Department. Agent Laudeman testified

that Appellant admitted to using the Ares program, and that he stated he was

the only person in the home with access to the Ares program. Id. at 69. She

also testified Appellant told her he was in the process of moving and had many

of his personal items still in his vehicle.5 Id. Agent Laudeman then obtained

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4 Using the American Registry of Internet Numbers (ARIN), Agent Laudeman
traced I.P. address 174.60.188.171 to its service provider Comcast, and
obtained Appellant’s subscriber information (name and address) from
Comcast through a court order issued by the Dauphin County Court of
Common Pleas. N.T., 10/11/16, at 52-55.

5   Appellant owned a black 2006 Ford Explorer.

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a search warrant for his vehicle and recovered 13 electronic items, one of

which was a Kingston hard drive containing 23 child pornography videos.

      On October 23, 2013, Appellant pled guilty to ten counts of sexual abuse

of children (possession); however, he withdrew his plea on May 18, 2015.

Before trial began on October 11, 2016, Appellant sought to prevent the

Commonwealth from playing at trial the 23 child pornography videos collected

as evidence against Appellant, particularly a video which contained the sound

of a child crying. Appellant argued they were overly prejudicial and cumulative

in light of Appellant’s stipulation that the videos contained child pornography.

After previewing the three videos Agent Laudeman downloaded, the court

allowed the Commonwealth to play short clips of them at trial. The court also

ruled it would determine the relative probative-prejudicial value of playing the

remaining videos during trial, and that the parties could determine themselves

if stipulation would be sufficient to prevent playing any or all of the remaining

videos. During trial, Appellant again objected to the playing of the videos and

stipulated to their content to prevent playback; however, the trial court

allowed the Commonwealth to play short clips of all 23 videos.

      A jury convicted Appellant of all 24 counts (three counts of

disseminating child pornography, 20 counts of possessing child pornography,

and one count of criminal use of a communications facility) on October 12,

2016. On January 24, 2017, Appellant was sentenced to 30 to 60 months in

prison followed by 45 years of special probation. Appellant filed timely post-




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sentence motions on February 3, 2017, which were denied by the trial court

on June 30, 2017.6 This appeal followed.7

       Appellant presents three issues for our review:

       1. Was the evidence at trial [] insufficient as a matter of law to
          establish [] Appellant’s guilt beyond a reasonable doubt[?]

       2. Did the trial court err in permitting the Commonwealth to play
          Commonwealth Exhibit #2, Video #3 with sound, [] where the
          sound was irrelevant to the charges and possessed no
          probative value rendering it inadmissible [] and [unfairly
          prejudicial] under Pa.R.E. 401 and 403?

       3. Did the trial court err in permitting the Commonwealth to play
          all videos, though limited in length, to establish the charges of
          dissemination and possession, where the videos were
          inherently inflammatory and [cumulative; therefore,] the
          danger of prejudice outweighed the probative value where []
          Appellant stipulated that each video contained child
          pornography?

Appellant’s Brief at 3.

       Appellant first argues that the evidence against him was insufficient to

prove his guilt beyond a reasonable doubt. More specifically, Appellant argues

the Commonwealth did not present sufficient evidence to prove that he

perpetrated the crimes with which he was charged. We disagree.



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6  Appellant filed a motion for extension of time for the court to decide
post-sentence motions on May 25, 2017, which was granted on June 5, 2017.

7 Appellant filed his notice of appeal on July 5, 2017. The trial court ordered
Appellant to file a concise statement of errors complained of on appeal on July
11, 2017, which he did on July 31, 2017. See Pa.R.A.P. 1925(b). The trial
court filed its opinion on September 12, 2017. See Pa.R.A.P. 1925(a).

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      The standard of review regarding claims of insufficiency of the evidence

is well established:

      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 that of 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 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 trier 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. Sauers, 159 A.3d 1, 11 (Pa. Super. 2017) (citation

omitted).




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        In his case, Appellant was charged with sexual abuse of children

(dissemination),8 sexual abuse of children (possession),9 and criminal use of

a communication facility.10 Appellant does not challenge the specific elements

of any of these offenses, but rather challenges, in several ways, that the

Commonwealth failed to identify Appellant as the offender.

        Appellant’s first contention is that since the Commonwealth’s software

only identified Appellant’s I.P. address, and there was no evidence that


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8    18 Pa.C.S.A. § 6312(c) states:

        Any person who knowingly sells, distributes, delivers,
        disseminates, transfers, displays or exhibits to others, or who
        possesses for the purpose of sale, distribution, delivery,
        dissemination, transfer, display or exhibition to others, 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.

9    18 Pa.C.S.A. § 6312(d) states:

        Any person who 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 commits an offense.

10   18 Pa.C.S.A. § 7512(a) states:

        A person commits a felony of the third degree if that person uses
        a communication facility to commit, 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 Controlled Substance, Drug, Device
        and Cosmetic Act. Every instance where the communication
        facility is utilized constitutes a separate offense under this section.

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Appellant’s wifi account was password protected at the time the downloads

were made, the Commonwealth could not prove it was not someone else using

Appellant’s wifi account to share child pornography. Appellant argues that it

could have been a neighbor or a stranger close to Appellant’s home, or that

someone else in the house, a friend or a relative, could have been using

Appellant’s wifi on their own device. Furthermore, Appellant argues that even

if it were his computer which shared the videos, the Commonwealth could not

prove he was the person using the computer at the time.

      Appellant’s arguments are without merit since the Commonwealth is not

required to disprove any of these scenarios to meet its burden of proof. The

Commonwealth can meet its burden by wholly circumstantial evidence and is

not required to disprove every possibility of innocence. When viewed in the

light most favorable to the Commonwealth, and considering all of the evidence

in the record, the Commonwealth presented sufficient circumstantial evidence

to enable the trier of fact to find Appellant guilty of disseminating child

pornography. The evidence adduced at trial by the Commonwealth was not

so weak and inconclusive that it did not permit the trier of fact to infer that

Appellant committed the charged offenses.        First, the wifi account was

registered to and paid for by Appellant and the computer in the home also

belonged to Appellant.     Second, the Commonwealth, while not finding

complete versions of the videos, found partial versions indicating Appellant

had attempted to download them.        Third, the Commonwealth discovered


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additional child pornography videos on electronic devices owned and

controlled by Appellant.          Most importantly, however, the videos were

downloaded by someone who used the Ares software program on Appellant’s

wifi account and Appellant admitted that he was the only person with access

to Ares on his computer.

       Appellant also contends that the Commonwealth did not meet its burden

as to the possession charges for the same reasons mentioned above. Here,

however, Appellant adds that someone could have hacked into his computer

without his knowledge and stored the material on his devices.       While it is

theoretically possible that someone could have hacked Appellant’s computer,

and there was a domain account on his computer which could allow such

access, Appellant’s arguments here are similarly without merit.      Appellant

points to the hard drive’s multiple user accounts (none of which were named

“Kyle”11), and to the domain account, to show someone else could have used

his computer. Appellant also argues that the creation of over 82 different user

accounts, as well as the presence of the aforementioned domain account,

suggest the computer could have been hacked. Finally, Appellant points to

the fact that the videos were recovered from recycle bins located on unnamed

and deleted user accounts (although one was traced to a folder named “Kyle




____________________________________________


11   One was named “Ky.”

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videos”), to demonstrate the Commonwealth failed to prove Appellant was the

user who downloaded the videos.

       Leaving aside Appellant’s admissions and his physical possession of

devices that contained child pornography, the Commonwealth’s forensic

evidence alone was sufficient to allow the jury to infer Appellant’s guilt from

the combined circumstances.             Agent Robert Soop, who conducted the

Commonwealth’s forensic examination, testified that persons who perpetrate

child pornography crimes often delete and re-download videos and P2P

software programs thereby leaving behind evidence similar to that recovered

in this case. N.T., 10/12/17, at 45-47. Agent Soop discovered two previous

Ares downloads with titles strongly suggestive of child pornography, one of

which had been located in user “Kyle’s” shared folder. Id. at 27-28. He also

generated a list of 40 previous Ares searches, most of which employed terms

commonly used by persons searching for child pornography. Id. at 29-31.

He was able to recover 40 additional partially downloaded12 child pornography

videos, as well as a 45-50 page event log detailing failed attempts to watch

child pornography, both from Appellant’s hard drive.           Id. at 47-53.

Furthermore, he testified that he found incomplete versions of the three

downloaded videos which had originally been located in a folder named “Kyle


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12 Partial downloads are videos which are not completely playable. They are
fragments of complete downloads. In this case, they were located in the
“unallocated space,” which means they were sent to the recycle bin and
deleted from there.

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videos” and that he discovered the user profile “Kyle” was deleted from the

hard drive. Id. at 53-55. Finally, he testified that the presence of 82 different

user accounts is equally suggestive of single and multiple users. Id. at 73-74.

For these reasons, we conclude that the evidence was sufficient to establish

that Appellant perpetrated the charged offenses and, therefore, that Appellant

is not entitled to relief on his sufficiency challenge.

      Appellant’s second and third issues both concern the admissibility of the

23 videos the Commonwealth played during trial. Appellant first argues that

the probative value of the videos was clearly outweighed by their prejudicial

effect, particularly since Appellant stipulated that they contained child

pornography. Appellant also argues that playing all 23 videos was needlessly

cumulative. Finally, Appellant argues that the sound of a child crying in one

of the videos was irrelevant to the charges against Appellant, as sound is not

an element of any of the offenses, making it wholly prejudicial.

      We review the admission of evidence on an abuse of discretion standard.

Commonwealth v. Flamer, 53 A.3d 82, 86 (Pa. Super. 2012). Also, we will

reverse the trial court’s decision only if the error can be proven beyond a

reasonable doubt to have contributed to the verdict.       Commonwealth v.

Konias, 136 A.3d 1014, 1022 (Pa. Super. 2016).

      Determining the admissibility of evidence is based on its relevance and

probative value. Sauers, 159 A.3d at 6. Evidence is relevant if it logically

tends to establish a material fact in the case, tends to make a fact at issue


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more or less probable, or supports a reasonable inference or presumption

regarding a material fact. Id.; see Pa.R.E. 401. “Once evidence is found to

be relevant, it will be inadmissible only if its probative value is substantially

outweighed by the danger of unfair prejudice or confusion.” Id.; see Pa.R.E.

403 (evidence may be excluded “if its probative value is outweighed by a

danger of unfair prejudice”). Commentary to Rule 403 defines unfair prejudice

as, “a tendency to suggest decision on an improper basis or to divert the jury’s

attention away from its duty of weighing the evidence impartially.” Pa.R.E.

403, cmt.

      Since Appellant’s claims address both the relevance and prejudice of the

videos, we will address their relevance first, and then turn to whether or not

the evidence was unfairly prejudicial and cumulative.

      Appellant argues the trial court admitted irrelevant evidence when it

allowed the Commonwealth to play the sound of a child crying in one of the

videos.   This claim is based upon Appellant’s construction of 18 Pa.C.S.A.

§ 6312(d) and, specifically, the word “depict” as it is used in defining the

offense of possessing child pornography.          Appellant reasons that the

plain-meaning of the word “depict” relates exclusively to visual images which,

in turn, restricts the scope of admissible evidence to visual mediums

exclusively. See Appellant’s Reply Brief. Appellant contends that sound can

only depict something through spoken words in narrative form. Appellant’s

Reply Brief at 2.   Therefore, by playing the sound of a child crying, the


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Commonwealth introduced irrelevant evidence, which served to unfairly

prejudice Appellant. We disagree.

      An evaluation of § 6312’s language reveals that media which contain

sound fall within the scope of the statute. Among other things, the statute

proscribes dissemination and possession of child pornography through various

media which in some, but not all cases, feature sound, including:          film,

videotape, and computer depiction.      In view of these enumerated media,

which include audio depictions, the statute cannot be interpreted to refer only

to silent films or videotapes. In this case, evidence that Appellant possessed

and disseminated materials which contained child pornography is clearly

relevant and material to establishing Appellant violation of § 6312. Since the

videos introduced at Appellant’s trial fell within the types of media prohibited

by the language of the statute, they are presumptively admissible to prove

guilt. Thus playing them, with or without sound, served to establish a material

fact and was entirely relevant to these proceedings.

      We now turn to whether or not playing all 23 videos unfairly prejudiced

Appellant. Appellant first argues that since he stipulated to the content of the

videos, their probative value decreased to such an extent that playing any of

them constituted unfair prejudice. First, our Supreme Court has established

that the Commonwealth may present all material and relevant evidence to

prove its case, and does not have to accept the accused stipulations.

Commonwealth v. Jemison, 98 A.3d 1254, 1257 (Pa. 2014) (citation


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omitted).   Since the Commonwealth was under no obligation to accept

Appellant’s stipulation, the evidence must be evaluated without consideration

of the stipulation. After viewing the evidence from this perspective, we do not

agree that the trial court abused its discretion by allowing the Commonwealth

to play any or all of the videos during trial.

      In this case, the trial court followed clear precedent set forth by this

Court in Sauers for presenting such evidence to the jury. In Sauers, the trial

court previewed the evidence, applied a prejudice-versus-probative value

balancing analysis, set parameters for publication of the evidence to the jury,

and enforced those parameters at trial. Sauers, 159 at 8. A review of the

record indicates that is also what the trial court did in this case.         N.T.,

10/11/16, at 4-19, 47-52; N.T., 10/12/16, at 33-43. Furthermore, the trial

court greatly mitigated any possibility of unfair prejudice by instructing the

jury to not allow the videos to stir their emotions and prejudice Appellant.

N.T., 10/12/16, at 196; See Jemison, 98 A.3d at 1262-63 (“Any possibility

of unfair prejudice is greatly mitigated by the use of proper cautionary

instructions to the jury. . .”). There is no doubt that introducing these videos

at trial prejudiced Appellant, but that is not our standard. The issue is whether

or not they were unfairly prejudicial. The trial court is not “required to sanitize

the trial to eliminate all unpleasant facts from the jury’s consideration where

those facts are relevant to the issues at hand and form part of the history and

natural development of the events and offenses for which the defendant is


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charged.”   Commonwealth v. Hairston, 84 A.3d 657, 666 (Pa. 2014)

(citation omitted).

      Appellant’s final argument is that playing all 23 of the videos was

cumulative, and thus unfairly prejudicial.    After review of the record, we

conclude that Appellant did not offer a timely and specific objection to the

cumulative nature of the videos and, thus, he has waived his claim.       See

Commonwealth v. Guilford, 861 A.2d 365, 670 (Pa. Super. 2004) (to

preserve an issue for review, a party must make a timely and specific objection

at trial) (citation omitted). Even if Appellant had not waived this claim, we

could not conclude that the trial court abused its discretion by admitting the

videos.   Each independent video disseminated or possessed by Appellant

represents a separate, independent crime under 18 Pa.C.S.A. § 6312. See

Commonwealth v. Jarowecki, 985 A.2d 955, 961 n. 10 (Pa. 2009). The

Commonwealth carries the burden of proof regarding each offense, and must

then be allowed to present evidence related to each individual offense. The

Commonwealth played 23 videos at trial, one for each of the 3 dissemination

and 20 possessory charges.       Hence, the trial court did not permit the

Commonwealth to introduce cumulative evidence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/24/2018




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