J-A25033-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT S. GROFF,                           :
                                               :
                       Appellant               :      No. 2007 MDA 2018

          Appeal from the Judgment of Sentence Entered July 11, 2018
               in the Court of Common Pleas of Lebanon County
             Criminal Division at No(s): CP-38-CR-0001186-2017

BEFORE: STABILE, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                           FILED JANUARY 13, 2020

        Robert S. Groff (“Groff”) appeals from the judgment of sentence

imposed following his convictions of ten counts of child pornography. 1 We

affirm.

        On January 25, 2017, firefighters responded to a fire at Groff’s residence

in Lebanon, Pennsylvania. While inside Groff’s home, one firefighter observed

a stack of photographs, with the top photograph appearing to show a nude

minor person. Police were contacted and dispatched to the home. Sergeant

Harry Ward (“Sergeant Ward”) of the North Cornwall Township Police

Department responded to the scene and was escorted inside the home by the

firefighter who observed the photographs. Sergeant Ward investigated the

photographs, then left the residence, secured the scene, and directed another

____________________________________________


1   See 18 Pa.C.S.A. § 6312(d).
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officer to obtain a search warrant. After obtaining the warrant, police officers

searched the home and collected, of relevance to this appeal, hundreds of

pornographic photographs and several male sex toys.

       As a part of the investigation, Sergeant Ward interviewed Groff. Groff

admitted to owning the photographs, and to pleasuring himself while viewing

the photographs on the day of the fire.

       Groff was subsequently charged with 71 counts of child pornography,

with each count corresponding to a single photograph. Groff filed a Motion in

Limine to preclude admission of the male sex toys, in particular, one

homemade masturbation device, and pornographic photographs other than

the 71 to which the charges relate. Following a hearing, the trial court denied

the Motion in Limine.

       Following a jury trial, Groff was convicted of ten counts of child

pornography. The jury determined that pictures 17, 32, and 64 through 71

depicted child pornography. The trial court sentenced Groff to six months to

two years, less one day, in prison. Groff filed a timely Notice of Appeal.2

       On appeal, Groff raises the following questions for our review:

       A. Did the Commonwealth fail to present sufficient evidence that
       the nudity in each photograph was depicted for the purpose of
       sexual stimulation or gratification of any person who might view
       such depiction, considering the Commonwealth improperly argued
       and based its entire case on the actions of [] Groff with the


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2 The trial court did not order Groff to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).

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      photographs, and not the intent of the photographer when taking
      the picture?

      B. Was it an abuse of discretion for the [t]rial [c]ourt to permit
      evidence and testimony, including sex toys, pornographic pictures
      (other than the 71 at issue in this case), a homemade sex device
      used for “male masturbation[,”] and testimony that [] Groff
      admitted to masturbating while looking at various pictures, to be
      presented to the jury for the purpose of establishing [Groff’s]
      sexual desire when looking at the images, despite that evidence
      and testimony being irrelevant for the purposes of determining
      whether the photographs at issue were “depicted for the purpose
      of sexual stimulation or gratification of any person who might view
      such depiction”?

      C. Was it an abuse of discretion for the [t]rial [c]ourt to allow the
      Commonwealth to present the incorrect legal definition of a
      prohibited sexual act and then fail to properly instruct the jury
      after the jury specifically asked if they should apply the correct
      legal standard or that argued by the Commonwealth?

Brief for Appellant at 6-7 (issues reordered).

      In his first claim, Groff alleges that the evidence was insufficient to prove

that the photographs he possessed were child pornography. See id. at 24-

25. Groff argues that violation of the child pornography statute, 18 Pa.C.S.A.

§ 6312(d), requires proof that the photographer’s purpose for taking the

photograph is the photograph viewer’s sexual stimulation or gratification.

Brief for Appellant at 24-25; see also id. at 17-19. Groff claims that whether

the viewer used the photos for sexual purposes is irrelevant. Id. at 17-19,

24-25.   According to Groff, the Commonwealth failed to produce evidence

proving that the photographs Groff possessed were taken by the photographer

for the purpose of sexual stimulation or gratification. Id. at 24-25.




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      We apply the following standard of review when considering a challenge

to the sufficiency of the evidence:

      [W]hether[,] 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 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, or part or none of the evidence.

Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted).

      Section 6312(d) states, in relevant part, that “[a]ny person who

intentionally views or knowingly possesses or controls any … photograph …

depicting a child under the age of 18 years engaging in a prohibited sexual act

or in the simulation of such act commits an offense.” 18 Pa.C.S.A. § 6312(d).

“Prohibited sexual act” is defined, in relevant part, as “nudity[,] if such nudity

is depicted for the purpose of sexual stimulation or gratification of any person

who might view such depiction.” Id. § 6312(g). “The term ‘for purposes of

sexual stimulation or gratification of the viewer’ permits the fact-finder to

distinguish between depictions [prohibited under § 6312(d)] from nude

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depictions taken for legitimate scientific, medical or educational activities,

which are specifically exempt under § 6312(f).” Commonwealth v. Savich,

716 A.2d 1251, 1256 (Pa. Super. 1998).

             Moreover, an ordinary person can certainly understand what
      conduct is prohibited and would have no need to guess at the
      meaning of the term “nudity” under Section 6312(a). The “nudity”
      qualifier does not create a subjective standard requiring people to
      guess at its meaning. The content, focus and setting of the
      images create an objective standard which allows a person of
      common intelligence to know what images are prohibited under
      the statute. … [C]ommon sense and human experience dictate
      that an individual of ordinary intelligence, not a mind reader or a
      genius, can identify whether a photograph of a nude child depicts
      “nudity” for the purpose of sexual stimulation or gratification.

Commonwealth v. Davidson, 938 A.2d 198, 213 (Pa. 2007).

      In its Opinion, the trial court addressed this claim as follows:

             [Pictures 64 through 71] depict a young girl performing
      gymnastics in the nude. … It is common sense that this is not the
      normal mode of dress for children when they are engaging in this
      activity. The photographs show images of the young girl in
      various revealing poses, some with her legs and arms spread
      open, accentuating the child’s breasts and genital area. The
      circumstances of the photograph reveal that they were not taken
      for any family, artistic[,] or other legitimate purpose. We find the
      jury was justified in finding these to be provocative and prone to
      incite sexual stimulation or gratification of someone who might
      view them.

             [Picture 17] shows a smiling young girl standing with her
      shoulders back and her legs spread open so that her breasts and
      genital area are prominent. Her hand rests on her thigh[,] with
      her other hand held slightly behind her, draping a towel under her
      genital area. She is alone and there is no evidence of any family
      setting. [Picture 32] is another picture of a solitary young girl,
      sitting with her legs apart, one arm behind her such that her
      breasts and genital area are prominent. She is also smiling and,
      again, there is no evidence of any family or other legitimate
      activity evident in the photograph. Considering all of these


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      circumstances, it was a reasonable inference for the jury to find
      that the nudity depicted in these images was intended for the
      purposes of sexual stimulation or gratification.

            Viewing the evidence in the light most favorable to the
      Commonwealth, together with all reasonable inferences favorable
      to the Commonwealth, the evidence is clearly sufficient to find
      [Groff] guilty of all elements of the offense beyond a reasonable
      doubt.

Trial Court Opinion, 11/8/18, at 11-12 (paragraph break added).

      We agree with the sound reasoning and determination of the trial court,

as set forth in its Opinion, and therefore affirm on this basis with regard to

Groff’s sufficiency of the evidence claim. See id.

      In his second claim, Groff alleges that the trial court should not have

admitted evidence of (1) the male sex toys, including the homemade

masturbation device, (2) hundreds of pornographic photographs not depicting

minors, and (3) Groff’s admission to police of using the masturbation device

while looking at the pictures at issue. See Brief for Appellant at 17-21. Like

in his first argument, Groff argues that this evidence is not relevant, because

violation of the child pornography statute, Section 6312(d), does not require

proof that the viewer used the photos for sexual purposes.      Id. at 17-19.

Groff claims that the evidence was unduly prejudicial, and that the prejudice

was compounded when the Commonwealth was permitted to argue that this

evidence proved what Groff had intended to do with the pictures. Id. at 20-

21.

      The admission of evidence



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      is within the sound discretion of the trial court and will be reversed
      only upon a showing that the trial court clearly abused its
      discretion. An abuse of discretion is not merely an error of
      judgment, but is rather the overriding or misapplication of the law,
      or the exercise of judgment that is manifestly unreasonable, or
      the result of bias, prejudice, ill-will or partiality, as shown by the
      evidence of record.

Commonwealth v. Tyson, 119 A.3d 353, 357-58 (Pa. Super. 2015).

      “All relevant evidence is admissible, except as otherwise provided by

law.” Pa.R.E. 402. “Evidence is relevant if … it has any tendency to make a

fact more or less probable than it would be without the evidence … and … the

fact is of consequence in determining the action.”         Pa.R.E. 401(a), (b).

However, this Court may affirm the judgment of sentence, even though

irrelevant evidence was admitted by the trial court, where the trial court’s

error was “harmless.” Commonwealth v. Vucich, 194 A.3d 1103, 1110 (Pa.

Super. 2018).

      Harmless error exists where: (1) the error did not prejudice the
      defendant or the prejudice was de minimis; (2) the erroneously
      admitted evidence was merely cumulative of other untainted
      evidence which was substantially similar to the erroneously
      admitted evidence; or (3) the properly admitted and
      uncontradicted evidence of guilt was so overwhelming and the
      prejudicial effect of the error was so insignificant by comparison
      that the error could not have contributed to the verdict.

Id. (brackets and internal citation omitted).

      Here, Groff was charged with 71 counts of child pornography, with each

count relating to a single picture. See N.T., 3/21/18, at 30. The 71 pictures

were submitted in two different mediums, digital and hard-copy, in Exhibits 2,

3, and 4. Id. at 55-59.     However, Exhibits 2 and 3 also contained pictures

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of adult pornography and the male sex device.         Id. at 48-54, 67, 79-81.

Additionally, Exhibit 5 contained pictures of adult pornography and of the

homemade masturbation device.         Id.; id. at 74-76.    The trial court also

admitted into evidence testimony of Groff’s admission to masturbating while

looking at the photographs at issue. Id. at 86.

      We find that the adult pornography pictures, the picture showing the

male masturbation device, and the testimony regarding Groff’s admission to

masturbating while looking at the photos was not relevant to prove that the

photographs of children contained “nudity [] depicted for the purpose of sexual

stimulation or gratification of any person who might view such depiction,” and

should have been excluded.         See 18 Pa.C.S.A. § 6312(g); see also

Davidson, 938 A.2d at 213 (stating that “[t]he content, focus and setting of

the images create an objective standard which allows a person of common

intelligence to know what images are prohibited under the statute.”).

      However, despite Groff’s concession that the 71 photos all showed

naked children, see N.T., 3/21/18, at 27, 116, the jury acquitted Groff of 61

of the 71 charges. If the jury had agreed with the Commonwealth’s argument

that they should consider Groff’s intent in viewing the photographs for

purposes of Section 6312(g), and not the photographer’s, it could have found

him guilty on all counts. Therefore, it is clear by the jury’s verdict that it was

not influenced by the admission of the contested evidence, and were able to

distinguish between photos that depicted child “nudity for the purpose of


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sexual stimulation or gratification of any person who might view such

depiction,” and child nudity that does not fall within Section 6312(g).

Accordingly, we conclude that any prejudice to Groff was de minimis, and we

deny Groff relief on this claim. See Vucich, supra.

      In his third claim, Groff alleges that the trial court (1) improperly

permitted the Commonwealth to make a material misstatement of Section

6312, and (2) exacerbated the error by giving an inadequate jury instruction

regarding Section 6312. See Brief for Appellant at 21-24. Groff argues, as

in his first and second claims, that whether a picture constitutes child

pornography is determined by the intent of the photographer, not the viewer.

Id. Groff states that the trial court permitted the Commonwealth to advise

the jury that the intent of the photograph viewer is determinative, and that

the trial court’s jury instruction did the same. Id. We will address Groff’s

claim regarding the jury instruction first.

             In order to preserve a claim that a jury instruction was
      erroneously given, the Appellant must have objected to the charge
      at trial. See Commonwealth v. Spotz, … 84 A.3d 294, 318 n.
      18 ([Pa.] 2014) (citations omitted); Pa.R.A.P. 302(b) (“A general
      exception to the charge to the jury will not preserve an issue for
      appeal. Specific exception shall be taken to the language or
      omission complained of.”); Pa.R.Crim.P. 647(B) (“No portions of
      the charge nor omissions from the charge may be assigned as
      error, unless specific objections are made thereto before the jury
      retires to deliberate.”). As our Supreme Court has explained:

            The pertinent rules, therefore, require a specific
            objection to the charge or an exception to the trial
            court’s ruling on a proposed point to preserve an issue
            involving a jury instruction.     Although obligating
            counsel to take this additional step where a specific

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            point for charge has been rejected may appear
            counterintuitive, as the requested instruction can be
            viewed as alerting the trial court to a defendant's
            substantive legal position, it serves the salutary
            purpose of affording the court an opportunity to avoid
            or remediate potential error, thereby eliminating the
            need for appellate review of an otherwise correctable
            issue.

Commonwealth v. Parker, 104 A.3d 17, 29 (Pa. Super. 2014) (citation

omitted).

      Here, following his recitation of the jury instructions, the trial judge

asked counsel for the Commonwealth and Groff whether any corrections or

additions needed to be made, and both sides responded “[n]o, Your Honor.”

See N.T., 3/21/18, at 157.        Accordingly, Groff did not make a specific

objection to the trial court’s jury instruction at trial, and this claim is waived.

See Parker, supra.

      We will next consider Groff’s claim regarding the prosecution’s alleged

misstatement of law in his closing argument.

            It is well established that a prosecutor is free to argue that
      the evidence leads to guilt and is permitted to suggest all
      favorable and reasonable inferences that arise from the evidence.
      A prosecutor also may argue his case with logical force and vigor.
      Additionally, a trial court’s decision not to grant a new trial based
      on prosecutorial misconduct will not be reversed on appeal absent
      an abuse of discretion.

Commonwealth v. Rios, 684 A.2d 1025, 1032-33 (Pa. 1996) (citations

omitted). Moreover, in order to find in appellant’s favor, we must find that

the misstatement of law prejudiced the appellant. See Spotz, 18 A.3d at 293




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(declining to find in favor of appellant where the prosecutor’s misstatement of

law did not prejudice the appellant).

      Here, the prosecutor made a misstatement of law by stating that the

jury must look at Groff’s intent in order to determine whether the pictures

contained “nudity [] depicted for the purpose of sexual stimulation or

gratification of any person who might view such depiction.”         See N.T.,

3/21/18, at 131-33; see also 18 Pa.C.S.A. § 6312(g); Davidson, 938 A.2d

at 213 (stating that “[t]he content, focus and setting of the images create an

objective standard which allows a person of common intelligence to know what

images are prohibited under the statute.”). However, the jury acquitted Groff

on 61 of the 71 charges, despite his concession that all 71 pictures depicted

naked children. See N.T., 3/21/18, at 27, 116. Had the jury been persuaded

by the prosecutor’s argument, it could have found Groff guilty on all 71

charges.    Accordingly, Groff was not prejudiced by the prosecutor’s

misstatement of law, and we deny Groff relief on this claim.      See Spotz,

supra.

      Judgment of sentence affirmed.

      Judge Stabile joins the memorandum.

      Judge McLaughlin concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/13/2020




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