J-S29016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

STEVEN LAWRENCE HURD

                             Appellant                  No. 1111 WDA 2015


              Appeal from the Judgment of Sentence July 9, 2015
               In the Court of Common Pleas of McKean County
              Criminal Division at No(s): CP-42-CR-0000664-2014


BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                                  FILED JUNE 1, 2016

        Appellant, Steven Lawrence Hurd, appeals from the judgment of

sentence entered July 9, 2015, in the Court of Common Pleas of McKean

County, following his conviction of criminal use of a communication facility.1

After review, we reverse Hurd’s judgment of sentence.

        By information filed on December 11, 2014, Appellant was charged

with ten counts of possession of child pornography,2 ten counts of

dissemination of child pornography,3 and one count of criminal use of a

communication facility. At the close of the bench trial, Appellant made an

oral motion for judgment of acquittal of the ten counts of possession of child
____________________________________________


*
    Former Justice   specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §   7512(a).
2
    18 Pa.C.S.A. §   6312(d).
3
    18 Pa.C.S.A. §   6312(c).
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pornography and ten counts of dissemination of child pornography, at counts

1-20 of the information. The trial court granted Appellant’s motion for

judgment of acquittal as to those counts,4 but found Appellant guilty of the

remaining count of criminal use of a communication facility. At sentencing,

Appellant made an oral motion for extraordinary relief, requesting that the

trial court set aside the verdict due to insufficient evidence. The trial court

denied Appellant’s motion, and sentenced Appellant to 11½ to 21½ months’

incarceration. This timely appeal followed.

       On appeal, Appellant argues that the evidence was insufficient to

support his conviction of criminal use of a communication facility.

       As a general matter, our standard of review of sufficiency claims
       requires that we evaluate the record in the light most favorable
       to the verdict winner giving the prosecution the benefit of all
       reasonable inferences to be drawn from the evidence. Evidence
       will be deemed sufficient to support the verdict when it
       establishes each material element of the crime charged and the
       commission thereof by the accused, beyond a reasonable doubt.
       Nevertheless, the Commonwealth need not establish guilt to a
       mathematical certainty. [T]he facts and circumstances
       established by the Commonwealth need not be absolutely
       incompatible with the defendant's innocence. Any doubt about
       the defendant's guilt is to be resolved by the fact finder unless
____________________________________________


4
  Each count of possession of child pornography and dissemination of child
pornography charged in the information related to a specific computer file.
See Information, 12/11/14. Although the Commonwealth introduced into
evidence over 90 images of suspected child pornography at trial, the trial
court determined that the Commonwealth failed to associate a particular
image or file with its corresponding count charged in the information. See
N.T., Bench Trial, 6/1/15 at 86-87. The court further determined that the
Commonwealth failed to sufficiently establish that some of the images
constituted child pornography. See id.



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      the evidence is so weak and inconclusive that, as a matter of
      law, no probability of fact can be drawn from the combined
      circumstances.

Commonwealth v. Mauz, 122 A.3d 1039, 1040-41 (Pa. Super. 2015)

(citation omitted).

      The offense of criminal use of a communication facility is defined as

follows:

      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.

18 Pa.C.S.A. § 7512. Thus, to support of conviction under Section 7512, the

Commonwealth must establish beyond a reasonable doubt that

      (1)   Appellant[]    knowingly   and    intentionally used     a
      communication facility; (2) Appellant[] knowingly, intentionally
      or recklessly facilitated an underlying felony; and (3) the
      underlying felony occurred. … Facilitation has been defined as
      “any use of a communication facility that makes easier the
      commission of the underlying felony.”

Commonwealth v. Moss, 852 A.2d 374, 382 (Pa. Super. 2004) (internal

citations omitted).

      Here, although the Commonwealth introduced into evidence images of

alleged    child   pornography   recovered from   Appellant’s   computer,   the

Commonwealth failed to satisfy its burden of proof to support the occurrence

of the underlying felonies and the trial court granted Appellant’s motion for

judgment of acquittal of the possession and dissemination of child


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J-S29016-16



pornography charges. “If the underlying felony never occurs, then [an

Appellant has] facilitated nothing and cannot be convicted under § 7512.”

Id., at 382. Absent proof beyond a reasonable doubt that Appellant

committed or facilitated the commission of an underlying felony, his

conviction of criminal use of a communication facility cannot stand.

      Judgment of sentence reversed. Appellant discharged. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/1/2016




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