J-A12006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                             IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                                 Appellee

                       v.

SHANE D. LAFFERTY

                                 Appellant                   No. 573 WDA 2015


        Appeal from the Judgment of Sentence Dated February 24, 2015
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0004063-2014

BEFORE: OLSON, J., SOLANO, J., and RANSOM, J.

MEMORANDUM BY SOLANO, J.:                            FILED SEPTEMBER 27, 2017

        Appellant, Shane D. Lafferty, appeals from the judgment of sentence

imposed after he was convicted of two counts of child pornography. 1                 We

affirm.

        An undercover investigation into the possession and distribution of

child pornography by Pennsylvania State Police’s Southwest Computer Crime

Task Force led the police to obtain a warrant to search an address on

Fallowfield   Avenue        in    Pittsburgh.   Police    executed   the   warrant   on

October 29, 2013.        When no one answered the door after they knocked

loudly for over a minute, police kicked in the door.           They found Appellant

exiting an upstairs bedroom. Appellant’s laptop computer was on the bed


____________________________________________
1
    18 Pa.C.S. § 6312(d).
J-A12006-17


with a file sharing program running.      No other person was in the room at

that time.

      A forensic investigation of the laptop computer confirmed that it

contained child pornography. As the trial court noted:

      Appellant conceded that his computer contained child
      pornography but alleged that others had access to the computer
      and may have downloaded child pornography without his
      consent or knowledge. The parties also stipulated that between
      April 5, 2013, and June 27, 2013, Appellant did not have access
      to his computer.

Trial Ct. Op. at 2. At the time Appellant’s laptop was seized, he participated

in a tape-recorded interview by the police in which he denied responsibility

for the child pornography on the laptop. N.T., 2/17/15, at 154, 167-69.

      Appellant was arrested in March 2014:

      Officer Dennis Baker of the City of Pittsburgh Police Department
      testified that on March 9, 2014 he was dispatched to a residence
      on Fallowfield Avenue to execute an arrest warrant for Appellant.
      Officer Baker knocked on the door and a man answered and
      identified himself as Brian Wells. The officer identified Appellant
      in court as the individual who said he was Brian Wells. “Brian
      Wells” told the officer that Appellant resided in the home but was
      not present at that time. Officer Baker asked Appellant to
      provide any identification, such as a driver’s license or a piece of
      mail with his name on it, but Appellant could not produce these
      items. Appellant was asked his date of birth by three different
      officers and Appellant gave three different responses. Officer
      Baker arrested him, at which point Appellant said, “I’m Shane
      Lafferty. I’m the one you’re looking for.”

Trial Ct. Op. at 5 (citations omitted).

      The trial court described Appellant’s trial as follows:

      The Commonwealth presented evidence to explain to the jury
      the procedure the State Police used to determine the presence of

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       child pornography on the laptop computer owned by Appellant.
       Corporal [John] Roche testified that he created a PowerPoint
       presentation to explain his forensic examination of Appellant’s
       computer. The PowerPoint was used as demonstrative evidence
       but was never offered or admitted into evidence.

       Corporal Roche examined Appellant’s computer and found
       approximately forty-three downloads with Appellant’s name
       associated with it.    Corporal Roche listed the downloads
       chronologically and testified that the activity of creating
       downloaded files ended on March 10, 2013 and resumed on
       June 29, 2013. The Corporal’s search results also included a
       handful of downloads associated with either Wendy Cross or Amy
       Cross, other residents of Appellant’s home.       None of the
       downloads associated with Wendy or Amy Cross contained child
       pornography.

       Corporal Roche gave as an example of the computer’s activity
       the files indexed on Appellant’s computer on July 9, 2013.
       Corporal Roche testified that on July 9, 2013, at 4:50 p.m., a
       text file was created on Appellant’s computer called “Shane’s
       food stamp app.number.text.” File sharing of child pornography
       occurred on the same date at 4:37 p.m. and at 5:05 p.m.
       Corporal Roche concluded that the same person who created the
       document “Shane’s food stamp app.number.text” was at the
       same time sharing child pornography through BitTorrent.[2] . . .

       Appellant called several witnesses in an effort to cast blame on
       David Cross[, Amy Cross’ brother,] for the child pornography on
       Appellant’s computer. Thomas Betker testified that he lived at
       [Appellant’s address] in the summer of 2013 with his girlfriend
       Jordan Thomas, Appellant, Amy Cross (Appellant’s ex-girlfriend),
       and her mother Wendy Cross, and said that during that summer
       David Cross periodically resided there as well. Betker testified
       that he never saw Appellant access child pornography, that other
       individuals had access to Appellant’s laptop computer during the
       relevant time frame, and that one of those individuals was David
       Cross. David would take the computer to a more private area of
       the home when he used it and at one point indicated a desire to
       destroy the computer. Jordan Thomas and a neighbor, Bridget
____________________________________________
2
 “BitTorrent is a network that the State Police monitor for the distribution of
child pornography.” Trial Ct. Op. at 3.


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      Aber, testified similarly. In addition, Aber testified that David
      Cross confided to her that he had a sexual predilection toward
      children.

      Amy Cross, David’s sister, gave testimony that mirrored that of
      Betker, Thomas and Aber, but added that she had observed
      David Cross looking at child pornography when he was fourteen
      years old. Amy Cross testified that David Cross has prescription
      medication for a medical condition but he told her that he
      doesn’t like to take it because it negatively affects his ability to
      control sexual urges he has towards children.

      Nathaniel Wells, a high school friend of David Cross, testified
      that he observed David Cross looking at child pornography
      twelve years ago when Cross would have been seventeen years
      old.    Wells further testified that he and Cross argued on
      Facebook over what Wells referred to as Cross’ use of scripture
      to justify Cross’ pedophilia.

      David Cross testified on rebuttal under a grant of immunity. He
      denied using Appellant’s computer to access child pornography.
      He denied having any conversation with Aber regarding an
      interest in having sex with young girls. He denied having been
      caught looking at child pornography by Wells twelve years ago.
      He stated that he was not at the Fallowfield address on the
      relevant dates and at the relevant times: July 3, 2013, at 6:00
      a.m., on July 8, 2013 at 3:00 a.m., or on July 9, 2013 at 12:35
      p.m. Further, he stated that he resided at the Fallowfield
      address in 2012 but had moved out by Christmas 2012 and was
      not residing there during the summer of 2013.

      Amy Cross was called as a surrebuttal witness. She testified
      that David Cross once explained to her that a person interested
      in child pornography can use a “Pedobear” which is an otherwise
      innocuous image such as the cartoon pony from “My Little Pony”
      to express that person’s pedophilic predilections.

Trial Ct. Op. at 4-7 (footnotes and citations omitted; some formatting

altered).

      One of the issues in this appeal concerns the following events that

occurred during jury deliberations.   In the course of the deliberations, the

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jury twice asked to hear the tape of Appellant’s interview by the police on

the day the laptop was seized. That tape was played for the jury by one of

the Commonwealth’s witnesses, Corporal Gerhard Goodyear, a State Police

officer who had testified during the trial as an expert on computer forensics

and peer-to-peer file sharing investigations. See Trial Ct. Op. at 3-4, 7-8.

The trial court recounted these events as follows:

      Corporal Goodyear entered the jury room on two separate
      occasions to play an audio file of the police interview with
      Appellant that was on the Commonwealth’s laptop. Counsel was
      informed that Corporal Goodyear was going to play the audio for
      the jury but counsel mistakenly presumed a technician from the
      Office of the District Attorney, and not the Trooper who had
      testified, would be the individual who entered the jury room.7
            7
              [The trial c]ourt’s practice at the time was that, when
            evidence contained on a Commonwealth laptop was
            requested by a jury, with the consent of counsel a
            technician from the Office of the District Attorney would
            enter the jury room with the tipstaff to operate the laptop.

      After learning that the Trooper had entered the jury room to play
      the audio file requested by the jury, Appellant’s counsel placed
      an objection o[n] the record. Counsel for Appellant was given an
      opportunity to develop a record by calling Corporal Goodyear
      and th[e trial c]ourt’s tipstaff, George Nichols, to explain the
      circumstances of how a Commonwealth witness ended up in the
      jury room. Nichols testified that on the first occasion, Corporal
      Goodyear entered the jury room and played the audio file for the
      jury without Nichols in the room. The second time the jury
      asked to hear the interview, Nichols testified that the Corporal
      played the audio file for the jury in his presence. Nichols
      testified that he did not hear the jury ask the Trooper any
      questions.

      Corporal Goodyear testified that when he was in the jury room
      the first time to play the audio file, the jury asked if they could
      play the recording without the Corporal being present. He
      replied that either he or George had to be present because the

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J-A12006-17


     thumb drive that contained the interview also contained other
     items which were not introduced into evidence. The jury asked
     if they could have a transcript of the interview and the Corporal
     replied that no transcript was available. The Corporal testified
     that no other discussions occurred while he was in the jury
     room.

Id. at 11-12.

     When it was revealed that Corporal Goodyear had spoken to the

jurors, Appellant’s counsel objected: “I object to that, Your Honor. He’s a

Commonwealth witness.     All the communication with the jurors should be

from the Court or George.”    N.T. at 539.    Counsel continued that he was

under the impression that the tape would be played by someone who was

not a Commonwealth witness and then added: “I don't want a mistrial. I

just don’t want it to happen anymore.”     Id. at 542.    The trial court then

specifically directed Appellant’s counsel “to determine whether or not he

would request a mistrial.”   Id. at 544.     After asking further questions of

Corporal Goodyear and the tipstaff, Appellant’s counsel stated, “[A]t this

point I would like to state it was a good faith mistake.       I think we all

interpreted him saying he was going to run them up there as he was going

to have them run up there or have the interview played.”          Id. at 547.

Counsel asked for an opportunity to consult with his client and then

reported: “Your Honor, I’ve spoke with Mr. Lafferty. We want to continue

with the deliberations. We’re not going to ask for a mistrial at this time.”

Id. at 548.

     On February 20, 2015, the jury convicted Appellant.

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         At Appellant’s sentencing hearing on February 24, 2015, the trial court

stated: “I do not find anything in particular that would mitigate or anything

necessarily that would aggravate the factors already taken into consideration

in the guideline form. . . . I impose a standard range sentence[.]”           N.T.,

2/24/15, at 19-20. The trial court sentenced Appellant to two to four years

of incarceration with six years consecutive probation.

         On March 6, 2015, Appellant filed post-sentence motions, including a

motion to reconsider his sentence and a “Motion for Judgment of Acquittal,”

requesting that “a new trial should be awarded in the interests of justice and

because the jury verdict was against the weight of the evidence.”             Post-

sentence Motions, 3/6/15, at 1-5. On March 10, 2015, the trial court denied

the post-sentence motions.

         On April 9, 2015, Appellant filed a timely notice of appeal to this

Court.3 In that appeal, Appellant raises the following issues, as stated in his

brief:

         I.    When the Commonwealth’s primary witness, Cpl.
         Goodyear, twice invaded the privacy of the jury room during
         deliberations, interacted with the jury, distributed evidence, and
         refused to leave when asked by the jurors, is a new trial
         warranted?

               A.    As [Appellant] was denied due process of law.

____________________________________________
3
   The trial court observed: “A considerable delay ensued as the trial
transcript was not filed in a timely manner.     Appellant obtained the
transcript on August 18, 2016 and filed a Concise Statement of Matters
Complained of on Appeal on September 7, 2016.” Trial Ct. Op. at 2.


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            B.    The trial court erred by failing to hold a hearing
            following the procedure in Remmer v. U.S., 347 U.S. 227
            (1954), “to determine the circumstances, the impact on
            the jury, and whether or not it was prejudicial, with all
            interested parties permitted to participate.”

            C.    The trial court erred when it did not give curative or
            cautionary instructions (if that was even possible).

      II.   Was the evidence insufficient to sustain the verdicts when
      the primary Commonwealth witnesses testified that there was no
      evidence that [Appellant] used the lap top computer to
      share/download files of child pornography on the dates alleged in
      the criminal information and that they merely assumed he was
      home at that time?

      III. Was the verdict contrary to the weight of the evidence
      when viewed in its entirety since the evidence was so weak,
      tenuous and vague?

      IV.   Did the sentencing court abuse its discretion by imposing a
      sentence that was inconsistent with the norms underlying the
      sentencing code and focused almost exclusively on the
      seriousness of the offenses to the exclusion of other pertinent
      factors?

Appellant’s Brief at 6-7 (emphasis in original).

                   Interference with Jury Deliberations

      Appellant first contends that, “when the Commonwealth’s primary

witness, Cpl. Goodyear, twice invaded the privacy of the jury room during

deliberations, interacted with the jury, distributed evidence and refused to

leave when asked by the jurors, a new trial is warranted.” Appellant’s Brief

at 23 (emphasis in original). He continues that “[i]t is well established that

insertion of outside influences into a jury’s deliberative process is contrary to

the foundations upon which our system of justice rests.”          Id. at 31-32.


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Appellant argues that the trial court should have held a hearing following the

procedure in Remmer v. United States, 347 U.S. 227 (1954), which

requires the trial court, upon learning of events that may have had an

improper impact on a juror, to hold a hearing (at which all parties are

permitted to participate) to determine the circumstances surrounding the

incident, its effect on the juror(s), and whether or not it was prejudicial to

the defendant. Appellant’s Brief at 31. Without such a hearing, Appellant

maintains that he “was denied due process of law.”          Id. at 23.     He also

insists that the trial court should have “give[n] curative or cautionary

instructions . . . to remedy any prejudice that might [have] result[ed].” Id.

at 41. Ultimately, Appellant contends that what happened in the jury room

entitles him to a new trial.

      In the first place, we observe that immediately after it learned that

Corporal Goodyear had entered the jury room and spoken to the jurors, the

trial court questioned both Corporal Goodyear and its tipstaff about what

happened    and   then   allowed    Appellant’s   counsel   to   conduct   further

questioning. The court did not question the jurors, but Appellant made no

request that the court do so.      Rather, Appellant’s counsel dismissed what

happened as “a good faith mistake” and said that he “just [did]n’t want it to

happen anymore.”      N.T. at 542, 547. Appellant therefore has no basis to

challenge the trial court’s hearing as inadequate.




                                      -9-
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       Nor does Appellant have a basis for a new trial or relief from his

judgment of sentence. We have stated:

       “When an event prejudicial to a defendant occurs at trial, he
       may either object, requesting curative instructions, or move for
       a mistrial.” Commonwealth v. Meekins, 266 Pa. Super. 157,
       403 A.2d 591, 596 (1979). Pursuant to Pa.R.Crim.P. [605](b),
       in order for a motion for a mistrial to be timely, it must be made
       when the alleged prejudicial event occurs.

Commonwealth v. Boring, 684 A.2d 561, 568 (Pa. Super. 1996), appeal

denied, 689 A.2d 230 (Pa. 1997).

       This rule applies to unlawful intrusions into jury deliberations.            For

example, in Commonwealth v. Cole, 135 A.3d 191, 194 (Pa. Super.),

appeal denied, 145 A.3d 162 (Pa. 2016), the trial court allowed an

employee of the district attorney’s office to access the jury room to play a

surveillance video during deliberations. This Court held any challenge to this

entry into the jury room by the district attorney’s office employee to be

waived    “for    failure   to   properly      object   during   trial.”   Id.   (citing

Commonwealth v. Baumhammers, 960 A.2d 59, 84 (Pa. 2008) (“the

absence of a specific contemporaneous objection renders the appellant’s

claim waived”)).4

       Here, the trial court invited Appellant to move for a mistrial after it

learned what had happened.            N.T. at 544.      Appellant’s counsel consulted

with his client and then reported: “Your Honor, I’ve spoke with Mr. Lafferty.
____________________________________________
4
 This Court nonetheless addressed the merits and held that the defendant
was not entitled to relief. Cole, 135 A.3d at 194.


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J-A12006-17


We want to continue with the deliberations.            We’re not going to ask for a

mistrial at this time.”      Id. at 548.       Appellant did not ask for a curative

instruction or any other relief. It was not until after the jury rendered its

verdict that Appellant switched positions on this issue.           As the trial court

correctly held, by then it was too late, as Appellant had already waived this

issue. See Trial Ct. Op. at 12-13 (citing Boring, 684 A.2d at 568).

       Although we strongly disapprove of the blatant impropriety of violating

the sanctity of the jury room, we are constrained to agree with the trial

court that this issue has been waived.             Appellant’s issues relating to this

incident are therefore untimely and merit no relief.5

                            Sufficiency of the Evidence

       Appellant asserts:

       The evidence was insufficient to sustain the verdicts when the
       primary Commonwealth witness, Cpl. Goodyear, testified that
       there was no evidence that [Appellant] used the lap top
       computer to share/download files of child pornography on the
       dates alleged in the criminal information and that he merely
       assumed the he was home at that time.

          [Appellant] was convicted of two (2) counts of Possession of
       Child Pornography under 18 Pa.C.S.A. § 6312(d), Sexual Abuse
       of Children, Child Pornography. This section provides that “[a]ny
       person who intentionally views or knowingly possesses or
____________________________________________
5
  Our holding of waiver does not foreclose Appellant’s right to seek collateral
relief for ineffective assistance of counsel. See Commonwealth v. Grant,
813 A.2d 726, 738 (Pa. 2002) (ineffective assistance of counsel claims are
normally withheld until collateral review proceedings); see also
Commonwealth v. Burno, 94 A.3d 956, 963 (Pa. 2014), cert. denied,
135 S. Ct. 1493 (2015).



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      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.”           The
      Commonwealth must prove . . . the defendant must have
      knowingly possessed or controlled the depiction.

         In the instant case, there is a lack of evidence establishing
      that [Appellant] knowingly possessed and controlled the child
      pornography on the laptop.

Appellant’s Brief at 42-43 (formatting and citation omitted).       Appellant

claims that he lacked exclusive possession and control over the laptop.

      On an evidentiary sufficiency claim —

      Our standard of review for a sufficiency of the evidence
      challenge is well established:

         A claim challenging the sufficiency of the evidence
         presents a question of law. We must determine whether
         the evidence is sufficient to prove every element of the
         crime beyond a reasonable doubt. We must view evidence
         in the light most favorable to the Commonwealth as the
         verdict winner, and accept as true all evidence and all
         reasonable inferences therefrom upon which, if believed,
         the fact finder properly could have based its verdict.

Commonwealth v. McFadden, 156 A.3d 299, 303 (Pa. Super. 2017)

(citation omitted).

      Viewing the record in a light most favorable to the Commonwealth, the

trial court recited the evidence establishing that Appellant knowingly

possessed and controlled the depictions on the computer:

      [The] laptop was recovered from [Appellant]’s bed, with a file
      sharing program running on it at that time. Appellant admitted
      that the computer was his and that the images on his computer
      constituted child pornography.     Corporal Roche’s testimony
      established that child pornography was downloaded during a

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J-A12006-17


      time that someone with Appellant’s first name created a
      document entitled “Shane’s food stamp app.number.text.”
      Furthermore, Corporal Roche’s testimony established that no
      child pornography was downloaded for months while Appellant
      was out of the residence and unable to access the laptop, but
      upon his return into the home, child pornography was
      downloaded. When informed of his arrest warrant and given the
      opportunity to self-report, Appellant agreed to do so but did not.
      Subsequently, after police arrived at his residence to arrest him,
      Appellant[] lied to the police regarding his identity.

Trial Ct. Op. at 9.   Notwithstanding his argument that he did not have

exclusive possession and control over the laptop, Appellant’s Brief at 42-43,

Appellant admitted the computer was his. Trial Ct. Op. at 4 (citing N.T. at

161, 223), 9.

      We agree with the trial court that this evidence was sufficient for the

jury, as fact-finder, to find that Appellant knowingly possessed and

controlled the computer and, hence, the child pornography saved on it. See

18 Pa.C.S. § 6312(d); McFadden, 156 A.3d at 303.          Appellant does not

challenge any other element of his child pornography convictions.          We

therefore hold that there was sufficient evidence for the jury to have

properly rendered its verdict of guilty as to both counts of child pornography

pursuant to 18 Pa.C.S. § 6312(d).

                          Weight of the Evidence

      Appellant also challenges the weight of the evidence, alleging:

      In the present case, the verdict was against the weight of the
      evidence where: neither Cpl. Goodyear and Cpl. Roche were
      able to establish that [Appellant] was in fact the individual who
      was using the lap top on the date and times the child
      pornography     was    being   downloaded      or   shared;    the

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J-A12006-17


       Commonwealth’s rebuttal witness, David Cross’ testimony was
       wholly incredible and should have been given no weight since he
       testified under a grant of immunity and demonstrated an
       incentive to lie to deflect his own possible wrong doing, despite
       the fact that other witnesses testified that he also had access to
       the lap top in question; David Cross previously revealed that he
       had sexual urges towards pre-pubescent girls to defense witness
       Bridgett Aber and that she also testified that he had very
       peculiar habits when using a laptop computer, including needing
       an extraordinary amount of privacy when using it; and defense
       witness Nathaniel Wells testified that he personally saw David
       Cross viewing child pornography that was the same type that the
       Commonwealth claimed that [Appellant] possessed/shared, Mr.
       Wells also credibly testified that he argued with David Cross over
       Mr. Cross’ posting of scripture that justified his attraction to child
       pornography. Hence, the verdicts rendered were contrary to the
       weight of the evidence presented as the Commonwealth’s
       evidence was so weak, tenuous, and vague that no finding of
       guilt could have been reached.

Appellant’s Brief at 45-46.6

       We have held:

       The weight of the evidence is exclusively for the finder of fact,
       who is free to believe all, none or some of the evidence and to
       determine the credibility of the witnesses.

       Appellate review of a weight claim is a review of the exercise of
       discretion, not of the underlying question of whether the verdict
       is against the weight of the evidence. Because the trial judge
       has had the opportunity to hear and see the evidence presented,
       an appellate court will give the gravest consideration to the
       findings and reasons advanced by the trial judge when reviewing
       a trial court’s determination that the verdict is against the weight
       of the evidence. One of the least assailable reasons for granting
       or denying a new trial is the lower court’s conviction that the
       verdict was or was not against the weight of the evidence and
       that a new trial should be granted in the interest of justice.
____________________________________________
6
  Pursuant to Pa.R.Crim.P. 607, Appellant’s challenge to the weight of the
evidence was preserved in his post-sentence motions, which included a
motion for a new trial. Post-sentence Motions, 3/6/15, at 1-5.


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      In order for a defendant to prevail on a challenge to the weight
      of the evidence, the evidence must be so tenuous, vague and
      uncertain that the verdict shocks the conscience of the court.

Commonwealth v. Talbert, 129 A.3d 536, 545-46 (Pa. Super. 2015)

(formatting, internal brackets, citations, and quotation marks omitted),

appeal denied, 138 A.3d 4 (Pa. 2016). “Resolving contradictory testimony

and questions of credibility are matters for the factfinder.” Commonwealth

v. Hopkins, 747 A.2d 910, 917 (Pa. Super. 2000).

      After a thorough review of the record in this matter, we conclude that

the trial court did not abuse its discretion in denying Appellant’s motion for a

new trial. We agree with the trial court that:

      Appellant’s theory of the case was that David Cross or another
      individual used Appellant’s computer to download child
      pornography. Based on the evidence presented at trial, the
      verdict does not so shock the conscience as to necessitate a new
      trial. The testimony, if believed, that David Cross viewed child
      pornography over ten years prior, held unconventional opinions
      regarding free love, and may have expressed a desire to destroy
      certain computers5 pales in the face of the Commonwealth’s
      evidence that the child pornography on Appellant’s computer
      was downloaded coincident with Appellant’s return to the home
      and not with a visit by Cross to the home.         Furthermore,
      Appellant’s name was associated with the downloads and no
      testimony placed Cross in the home at or immediately preceding
      the downloads.       The jury could reasonably conclude that
      Appellant used his computer to download child pornography. As
      such, Appellant’s claim is without merit.
            5
              Even if Cross used Appellant’s computer at some point,
            that does not preclude the possibility that Appellant
            downloaded the child pornography in question.

Trial Ct. Op. at 10.


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        Appellant essentially asks us to reassess the credibility of the

witnesses and to reweigh the testimony and evidence presented at trial.

See Appellant’s Brief at 45-47.        We cannot and will not do so.            The jury

found credible Corporal Roche’s testimony that someone with Appellant’s

first   name     created    a     document       entitled   “Shane’s     food     stamp

app.number.text,” that no child pornography was downloaded for months

while Appellant was out of the residence and unable to access the laptop,

and that downloading of the pornography resumed after Appellant returned

to his home.      Thus, the trial court concluded that the verdict was not so

contrary to the evidence as to shock the court’s conscience and hence was

not against the weight of the evidence. We discern no abuse of discretion in

that ruling.

                                    Sentencing

        Finally, Appellant challenges his sentence:

        [Appellant]’s sentence was manifestly excessive, unreasonable,
        and an abuse of discretion. It was not consistent with the norms
        underlying the sentencing code and failed to consider all relevant
        factors including the nature and characteristics of the defendant,
        and his rehabilitative needs. Instead, the [trial c]ourt focused
        exclusively on the seriousness of the offense to the exclusion of
        other pertinent factors.

Appellant’s Brief at 47-48.

        Before we reach the merits of Appellant’s claim, we must decide

whether     to   exercise   our   discretion   to   consider   this    appeal    of   the

discretionary aspects of a sentence, which we will do only if:                  (1) the


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appellant has filed a timely notice of appeal; (2) he has preserved the

sentencing issue at the time of sentencing or in a motion to reconsider and

modify his sentence; (3) he presents the issue in a properly framed

statement in his brief under Rule 2119(f) of the Rules of Appellate

Procedure, pursuant to Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.

1987); and (4) in the words of Section 9781(b) of the Sentencing Code, 42

Pa.C.S. § 9781(b), “it appears that there is a substantial question that the

sentence imposed is not appropriate under this chapter.”           See, e.g.,

Commonwealth v. Haynes, 125 A.3d 800, 807 (Pa. Super. 2015), appeal

denied, 140 A.3d 12 (Pa. 2016); Commonwealth v. Zelinski, 573 A.2d

569, 574-75 (Pa. Super.), appeal denied, 593 A.2d 419 (Pa. 1990).

     As noted above, on April 9, 2015, Appellant filed a timely notice of

appeal to this Court. He also raised a challenge to the discretionary aspects

of his sentence in his post-sentence motions and an Appellate Rule 1925(b)

statement, and he has included a concise statement of the reasons relied

upon for allowance of an appeal in his brief. See Appellant’s Brief at 19-22.

We therefore must determine whether his appeal presents a substantial

question regarding his sentence. In that connection:

     A defendant presents a substantial question when he sets forth a
     plausible argument that the sentence violates a provision of the
     Sentencing Code or is contrary to the fundamental norms of the
     sentencing process. . . . The Sentencing Code prescribes
     individualized sentencing by requiring the sentencing court to
     consider the protection of the public, the gravity of the offense in
     relation to its impact on the victim and the community, and the
     rehabilitative needs of the defendant[.]

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Commonwealth v. Luketic, 162 A.3d 1149, 1160-61 (Pa. Super. 2017)

(brackets, quotation marks, footnote, and citations omitted).

      Here, the trial court concluded that Appellant failed to raise a

substantial question. See Trial Ct. Op. at 13; Luketic, 162 A.3d at 1160-

61; Haynes, 125 A.3d at 807; Zelinski, 573 A.2d at 574-75. We disagree,

as does the Commonwealth.         Commonwealth’s Brief at 40-41.         In his

Appellate Rule 1925(b) statement, at Paragraph G, Appellant claimed that

his sentence “was not consistent with the norms underlying the sentencing

code.”    Cf. Luketic, 162 A.3d at 1160-61.        He also contends that his

sentence “was manifestly excessive [and] unreasonable.”             See Post-

sentence Motions, 3/6/15, at 4; Appellate Rule 1925(b) Statement ¶ G. “A

claim that a sentence is manifestly excessive such that it constitutes too

severe a punishment raises a substantial question.”       Commonwealth v.

Derry, 150 A.3d 987, 995 (Pa. Super. 2016) (citation and quotation marks

omitted). In addition, Appellant argues in his Rule 2119(f) statement that

“[t]he sentence imposed . . . failed to consider all relevant factors including

the nature and characteristics of the defendant, and his rehabilitative

needs.”   Appellant’s Brief at 20.   An allegation that the sentencing court

failed to consider an appellant’s rehabilitative needs constitutes a substantial

question, when presented in conjunction with other relevant factors.       See,

e.g., Luketic, 162 A.3d at 1160-61; Commonwealth v. Swope, 123 A.3d

333, 340 (Pa. Super. 2015) (claim that failure to consider rehabilitative

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J-A12006-17


needs      and    mitigating   factors    raised   a    substantial   question);

Commonwealth v. Dodge, 77 A.3d 1263, 1273 (Pa. Super. 2013) (claim

that sentencing court disregarded rehabilitation and the nature and

circumstances of the offense raised a substantial question), appeal denied,

91 A.3d 161 (Pa. 2014); Commonwealth v. Hill, 66 A.3d 365 (Pa. Super.

2013) (claim that sentence was inconsistent with the protection of the public

and with appellant’s rehabilitative needs raised a substantial question). We

therefore conclude that Appellant has raised a substantial question.

        We apply the following standard of review:

        Sentencing is a matter vested in the sound discretion of the
        sentencing judge, and a sentence will not be disturbed on appeal
        absent a manifest abuse of discretion. In order to establish that
        the sentencing court abused its discretion, the defendant must
        establish, by reference to the record, that the sentencing court
        ignored or misapplied the law, exercised its judgment for
        reasons of partiality, prejudice, bias or ill will, or arrived at a
        manifestly unreasonable decision.

Luketic, 162 A.3d at 1162-63 (brackets, quotation marks, and citations

omitted).

        The Sentencing Code, 42 Pa.C.S. § 9721(b), provides that a court

should impose a sentence of confinement that is “consistent with the

protection of the public, the gravity of the offense as it relates to the impact

on the life of the victim and on the community, and the rehabilitative needs

of the defendant.” See Commonwealth. v. Walls, 926 A.2d 957, 962 (Pa.

2007). During Appellant’s sentencing hearing, the trial court asserted, “I do

not find anything in particular that would mitigate or anything necessarily

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that would aggravate the factors already taken into consideration in the

guideline form. . . . I impose a standard range sentence[.]” N.T., 2/24/15,

at 19-20. In its opinion, the trial court further explained that its sentence

was based on the fact that:

      Although Appellant was charged with two counts of Possession of
      Child Pornography, the testimony elicited indicated hundreds,
      perhaps thousands of images of child pornography, representing
      a vast pool of child victims. Appellant’s probationary status from
      1994 to sentencing strongly suggests that Appellant is a poor
      candidate for community supervision. If anything, th[e trial
      c]ourt would have been justified in imposing a significantly
      longer sentence.

Trial Ct. Op. at 14.

      Thus, the record indicates that the trial court considered the gravity of

the offense, inasmuch as it considered that, even though the court could

only sentence Appellant on two counts, he actually had possessed hundreds

of images of child pornography. See 42 Pa.C.S. § 9721(b); Walls, 926 A.2d

at 962; Trial Ct. Op. at 14. The trial court also reflected upon the impact on

the victims, noting that “a vast pool of child victims” was involved. See 42

Pa.C.S. § 9721(b); Walls, 926 A.2d at 962; Trial Ct. Op. at 14. It further

considered the impact upon the community, noting that “Appellant is a poor

candidate for community supervision.”     See 42 Pa.C.S. § 9721(b); Walls,

926 A.2d at 962; Trial Ct. Op. at 14.        It likewise considered Appellant’s

rehabilitative needs by noting that Appellant had been on probation for other

offenses from 1994 until sentencing, indicating that previous attempts at

rehabilitation had failed.   See 42 Pa.C.S. § 9721(b); Walls, 926 A.2d at

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962; Trial Ct. Op. at 14. Finally, because the trial court sentenced Appellant

in the standard range, finding no aggravating factors, the sentence was not

excessive and was consistent with the norms of the Sentencing Code. Id.

We therefore discern no abuse of discretion or error of law in the sentence

imposed by the trial court.

      Judgment of sentence affirmed.

      Judge Ransom joins the memorandum.

      Judge Olson concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/2017




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