J-S49040-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
        Appellee

                     v.

M.I.B.

        Appellant                                   No. 140 EDA 2014


              Appeal from the Order entered December 19, 2013
                 In the Court of Common Pleas of Pike County
               Criminal Division at No: CP-52-CR-0000215-2012


BEFORE: OLSON, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                     FILED DECEMBER 04, 2014

        M.I.B. (“Appellant”) appeals from the order entered December 19,

2013 in the Court of Common Pleas of Pike County, denying Appellant’s

motion to dismiss his case on double jeopardy grounds.1 Following review,

we affirm.

        In a May 2011 indictment, the United States Attorney for the Middle

District of Pennsylvania charged Appellant with one count of sexual

exploitation of children and two counts of certain activities relating to

material constituting or containing child pornography.2 The events leading


1
  The order was amended on December 30, 2013 to reflect that Appellant’s
order was non-frivolous and merited substantive consideration and,
therefore, was immediately appealable as a collateral order under
Pa.R.Crim.P. 587(B)(6) and Pa.R.A.P. 313.
2
    18 U.S.C. §§ 2251(b), 2252A(a)(2)(A), 2252A(a)(5)(B), and 2256(8)(B).
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to the charges occurred between March 2007 and April 2011. In February

2012, Appellant entered into a plea agreement with the federal prosecutor,

pleading guilty to a violation of 18 U.S.C. § 2251(b) (Sexual Exploitation of

Children-Production). Pursuant to § 2251(b):

     Any parent, legal guardian, or person having custody or control
     of a minor who knowingly permits such minor to engage in, or to
     assist any other person to engage in, sexually explicit conduct
     for the purpose of producing any visual depiction of such conduct
     or for the purpose of transmitting a live visual depiction of such
     conduct shall be punished as provided under subsection (e) of
     this section, if such parent, legal guardian, or person knows or
     has reason to know that such visual depiction will be transported
     or transmitted using any means or facility of interstate or foreign
     commerce or in or affecting interstate or foreign commerce or
     mailed, if that visual depiction was produced or transmitted
     using materials that have been mailed, shipped, or transported
     in or affecting interstate or foreign commerce by any means,
     including by computer, or if such visual depiction has actually
     been transported or transmitted using any means or facility of
     interstate or foreign commerce or in or affecting interstate or
     foreign commerce or mailed.

18 U.S.C. § 2251(b).

     In May 2012, the Commonwealth filed charges against Appellant in an

Information listing 69 counts that involved 13 separate crimes against three

victims between November 2006 and April 2011. The charges, listed in the

order they appear in the Information, included rape, rape of a child,

involuntary deviate sexual intercourse, aggravated indecent assault of a

child, statutory sexual assault, aggravated indecent assault, incest, sexual

abuse of children, sexual exploitation of children, indecent assault, and




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corruption of minors.3   The victims were identified as Appellant’s daughter

K.B., approximately 9 years of age, who suffers from a mental disability;

K.M., approximately 9 years of age; and M.B., an individual under the age of

18. Information, 5/29/12, at 1-11.

      Appellant filed a motion to dismiss the Pennsylvania action, claiming

the prosecution was barred by his conviction in federal court on one count of

sexual exploitation of children.   On December 19, 2013, the trial court

denied Appellant’s motion. This timely appeal followed.

      The trial court ordered Appellant to file a statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant failed to

comply with the 1925(b) order. The trial court issued an opinion and order

on February 24, 2014 announcing that Appellant’s counsel was ineffective

per se, granting Appellant leave to file a 1925(b) statement nunc pro tunc,

and directing counsel to file a 1925(b) statement within ten days of the

order. Supplemental Appeal Opinion, 3/7/14, at 1. Counsel complied with

the directive and filed a 1925(b) statement asserting the trial court

committed error by denying the motion to dismiss. In his brief, Appellant

phrases his issue as follows:

      Whether, where Appellant pled guilty in Federal Court to Sexual
      Exploitation of Children, arising from him videotaping [] minor
      children as he had sex with them, thus manufacturing child
      pornography, state charges of Rape of a Child and related

3
  18 Pa.C.S.A. §§ 3121(a)(5), 3121(c), 3123(a)(5) and (b), 3125(b),
3122.1, 3125(a)(7), 4302, 6312(b), 6320(a), 3126(a)(7) and (a)(6), and
6301(a)(1)(i).


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      charges, stemming from the same sex that he had with those
      minor children on tape, are barred by Double Jeopardy?

Appellant’s Brief at 7.

      “An appeal grounded in double jeopardy raises a question of

constitutional law. This court’s scope of review in making a determination

on a question of law is, as always, plenary. As with all questions of law, the

appellate standard of review is de novo[.]” Commonwealth v. Kearns, 70

A.3d 881, 884 (Pa. Super. 2013) (quoting Commonwealth v. Vargas, 947

A.2d 777, 780 (Pa. Super. 2008)).

      In Commonwealth v. Calloway, 675 A.2d 743 (Pa. Super. 1996),

this Court explained that we must examine whether the federal action bars

state prosecution under 18 Pa.C.S.A. § 111.       Id. at 747.    Section 111

provides, in pertinent part:

      When conduct constitutes an offense within the concurrent
      jurisdiction of this Commonwealth and of the United States or
      another state, a prosecution in any such other jurisdiction is a
      bar to a subsequent prosecution in this Commonwealth under
      the following circumstances:

          (1) The first prosecution resulted in . . . a conviction as
         defined in section 109 of this title (relating to when
         prosecution barred by former prosecution for the same
         offense) and the subsequent prosecution is based on the
         same conduct unless:

            (i) the offense of which the defendant was formerly
            convicted . . . and the offense for which he is
            subsequently prosecuted each requires proof of a
            fact not required by the other and the law defining
            each of such offenses is intended to prevent a
            substantially different harm or evil[.]



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18 Pa.C.S.A. § 111(1).

      In Calloway, this Court noted:

      In applying [18 Pa.C.S.A. § 111], the courts of this
      Commonwealth have consistently held that there are three
      relevant inquiries to be made. The first inquiry is whether or not
      the prosecution which the Commonwealth proposes to undertake
      involves the same conduct for which the individual was
      prosecuted by the other jurisdiction. If the answer to this
      question is yes, then we must determine whether each
      prosecution requires proof of a fact not required by the other,
      and whether the law defining the Commonwealth offense is
      designed to prevent a substantially different harm or evil from
      the law defining the other jurisdiction's offense.         If the
      Commonwealth cannot satisfy both of these requisites, then the
      prosecution may not proceed.

Id. at 747 (internal citations and footnote omitted, emphasis in original). “It

would seem that an affirmative answer to the initial inquiry lowers the bar to

the subsequent prosecution and that only an affirmative response to both of

the remaining inquiries can lift the bar.” Id. (quoting Commonwealth v.

Abbott, 466 A.2d 644, 649 (Pa. Super. 1983)).

      Applying the test outlined in Calloway, the trial court first considered

whether the Commonwealth was attempting to prosecute Appellant for the

same conduct that resulted in his federal court conviction.    The trial court

looked to this Court’s definition of “same conduct” as “encompassing all

criminal behavior committed in support of a common and continuing

scheme.”   Trial Court Order, 12/19/13, at 2 (quoting Commonwealth v.




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Mascaro, 394 A.2d 998 (Pa. Super. 1978)).4 The trial court determined “it

would appear, at least based on the facts pled in the [I]nformation, that the

state and federal prosecutions are ‘predicated on the same acts, against the

same victim[s], which were performed without interruption by [Appellant] in

the same incident.’” Id. (quoting Calloway, 675 A.2d at 748).5 The trial

court then proceeded to consider the remaining two prongs of the test

enunciated in Calloway, i.e., whether prosecution requires proof of a fact

not required by the other, and whether the law defining the Commonwealth

offense is designed to prevent a substantially different harm or evil from the

law defining the other jurisdiction’s offense.

      We note initially that Counts 40, 41 and 67 in the Commonwealth’s

Information alleged sexual abuse of children, sexual exploitation of children

and corruption of minors, respectively, involving M.B., Appellant’s biological


4
  The language quoted by the trial court actually appears in this Court’s
decision in Calloway, 675 A.2d at 748, which cites Mascaro, 394 A.2d at
998 and 1001.
5
  The state Information lists each of the charges of rape, rape of a child,
etc., and indicates which of the three minors, two females and one male,
was the victim of Appellant’s alleged criminal conduct for each of the 69
counts. The affidavit upon which the federal charges were based provides a
narrative that identifies three female victims and the offender, Appellant,
and describes the videos and photographs taken and disseminated by
Appellant in which the physical acts charged in the state Information are
depicted. Although the state Information focuses on the physical acts and
the federal complaint focuses on the production and dissemination of visual
depictions of those physical acts, both prosecutions are, as will be discussed
herein, predicated upon the same acts against the female victims, K.B. and
K.M.



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son.   These charges were based on an interview with M.B. conducted on

January 20, 2012, subsequent to the May 2011 federal indictment. Affidavit

of Probable Cause, 3/22/12 at 14; Complaint, 5/9/12 at 8.        The federal

prosecution involved crimes against three female victims and did not include

any charges related to M.B.   Consequently, the state prosecution of those

crimes was not predicated on the same acts, against the same victim, as any

of the federal charges.   The state prosecution of charges with respect to

M.B. are not barred by double jeopardy.6

       With respect to victims K.B. and K.M., at first glance, it would not

appear that Appellant’s “conduct” leading to federal sexual exploitation

charges was the same conduct giving rise to state charges such as rape,

statutory sexual assault and incest.       However, applying the Calloway

definition of conduct, i.e., encompassing all criminal behavior committed in

support of a common and continuing scheme, we conclude, as did the trial

court, that both the federal and state charges against Appellant arise from

the same conduct. The common and continuing scheme of conduct on the

part of Appellant led the U.S. Attorney to charge Appellant with sexual

exploitation of victims K.B. and K.M. while the Commonwealth elected to file

6
    The only state charges of sexual abuse of children, 18 Pa.C.S.A.
§ 6312(b), and sexual exploitation of children, 18 Pa.C.S.A. § 6320(a),
related to M.B. Therefore, our continuing analysis need not address those
offenses. The sole remaining Chapter 63 charges were corruption of minor
charges, 18 Pa.C.S.A. § 6301(a)(1)(i), involving all three minors, K.B., K.M.
and M.B. Because charges relating to M.B. have already been eliminated
from double jeopardy consideration, the only Chapter 63 charges we shall
consider are corruption of minor charges involving K.B. and K.M.


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charges more directly related to Appellant’s physical conduct and contact

with those victims.

      After establishing that the Commonwealth’s proposed prosecution

involved the same conduct for which Appellant was federally prosecuted, the

trial court proceeded with a two-pronged analysis to determine whether each

prosecution requires proof of a fact not required by the other and whether

the law defining the Commonwealth offense is designed to prevent a harm

or evil substantially different from the law defining the federal offense. The

burden of proof for this inquiry falls upon the Commonwealth based on a

preponderance of the evidence.       Calloway, 675 A.2d at 748 (quoting

Abbott, 466 A.2d at 649).

      The trial court examined the federal sexual exploitation of children

provision requiring knowledge by the parent or person having custody of a

minor that the visual depiction of sexually explicit conduct involving a child

would be “transported or transmitted using any means or facility of

interstate or foreign commerce” by mail or other means, including by

computer. 18 U.S.C. § 2251(b). By contrast, the trial court noted,

      None of the Chapter 31 offenses that [Appellant] has been
      charged with require proof of facts that the accused is a parent
      having custody or control of the minor victim who knowingly
      permits or assists the minor in engaging in sexually explicit
      conduct for the purpose of producing a visual depiction of such
      activity if the accused knows that the depiction will be
      transported using any means of interstate or foreign commerce.
      Nor do the non-Chapter 31 crimes of Incest [], Sexual
      Exploitation of Children [] or corruption of minors [].



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Trial Court Order, 12/19/13 at 3.

        The trial court acknowledged some similarity between Appellant’s

federal sexual exploitation of children conviction and Pennsylvania’s sexual

abuse of children offense7 but distinguished the two based on the fact the

federal offense involves “[a]ny parent, legal guardian or person having

custody or control of a minor” while the Pennsylvania statute applies to

“[a]ny person.”         Trial Court Order, 12/19/13, at 3 (citing 18 U.S.C.

§ 2251(b) and 18 Pa.C.S.A. § 6312(b)). However, the only charge of sexual

abuse of children in the Pennsylvania prosecution involved M.B. As

recognized above, none of the federal charges involved M.B.

        Based on its comparison between the federal and state prosecutions,

the     trial   court   concluded   the    Commonwealth    established,   by   a

preponderance of the evidence, that the prosecutions required distinct proof

of facts. Our review confirms that conclusion. Federal sexual exploitation,

by its definition, does not require that the parent or person having custody

be engaged in any direct physical contact with his victim. None of the state

7
    Under 18 Pa.C.S.A. § 6312(b) (Sexual abuse of children),

        (1) Any person who causes or knowingly permits a child under
        the age of 18 years to engage in a prohibited sexual act or in the
        simulation of such act commits an offense if such person knows,
        has reason to know or intends that such act may be
        photographed, videotaped, depicted on computer or filmed.

        (2) Any person who knowingly photographs, videotapes, depicts
        on computer or films a child under the age of 18 years engaging
        in a prohibited sexual act or in the simulation of such an act
        commits an offense.


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crimes charged requires proof that a parent or legal guardian be involved in

permitting or assisting a minor to engage in sexually explicit conduct for

transmission in interstate or foreign commerce. Further, the state charges

of rape, rape of a child, statutory sexual assault, etc., do require proof of an

actual physical act committed by the person charged.            Therefore, each

prosecution requires proof of a fact not required by the other, satisfying that

prong of the Calloway test.

      The last prong of the Calloway analysis requires a finding that the

federal and state statutes target substantially different harms or evils “as

the evil to be deterred is one of the pivotal considerations in the . . . interest

analysis.”    Calloway, 675 A.2d at 748 (quoting Commonwealth v.

Wetton, 591 A.2d 1067, 1072 (Pa. Super. 1991), aff’d, 641 A.2d 574 (Pa.

1994)).

      The trial court stated:

      The Chapter 31 crimes [Appellant] has been charged with, by
      their very nature, prohibit and criminalize everything from
      sexual assaults to nonconsensual sexual contact, and [the
      Chapter 43 crime] Incest prohibits sexual contact between
      members of the same family, regardless of whether the contact
      is consensual. The Chapter 63 crimes are designed to protect
      the safety and welfare of children. Specifically, . . . Corruption
      of Minors is aimed at preventing the corruption of the morals of
      a minor child.

Trial Court Order, 12/19/13, at 4.      We agree.    The evils targeted by the

Chapter 31 and Chapter 43 crimes are the actual physical acts of sexual

contact with minors, including a family member, while the evils targeted by



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the Chapter 63 crimes are, as the trial court recognized, designed to keep

minors safe from acts of sexual abuse.8 These evils contrast with the evil of

a parent or guardian producing and disseminating child pornography around

the country and the world, subjecting “the children who are the subjects of

pornographic materials to suffer psychological, emotional and mental harm”

because “materials produced are a permanent record of the children’s

participation and the harm to the child is exacerbated by their circulation.”

Commonwealth v. Davidson, 938 A.2d 198, 209 (Pa. 2007) (quoting New

York v. Ferber, 458 U.S. 747, 758-59 (1982)).         The state prosecution

relating to crimes against M.B. were not part of the federal prosecution and

are not barred by double jeopardy. Further, because the federal and state

statutes target different harms and evils and, as previously established,

because the prosecutions of charges involving K.B. and K.M. require proof of

facts not required by the other, we agree with the trial court that the

Commonwealth has satisfied its burden by a preponderance of the evidence.

Therefore, the Commonwealth may proceed with its prosecutions as set

forth in the May 29, 2012 Information.

     Order affirmed.




8
  As indicated in n. 6, the only Chapter 63 charges that remain for our
consideration are corruption of minor charges involving K.B. and K.M.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/4/2014




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