J-S46009-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

WESLEY P. AMY

                        Appellant                  No. 1813 MDA 2016


           Appeal from the Judgment of Sentence May 20, 2016
             In the Court of Common Pleas of Centre County
           Criminal Division at No(s): CP-14-CR-0002090-2014


COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

WESLEY P. AMY

                        Appellant                  No. 1814 MDA 2016


           Appeal from the Judgment of Sentence May 20, 2016
             In the Court of Common Pleas of Centre County
           Criminal Division at No(s): CP-14-CR-0000658-2015


BEFORE: BOWES, J., OLSON, J., AND STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.:                         FILED AUGUST 17, 2017

     Wesley P. Amy appeals from the aggregate judgment of sentence of

two to four years incarceration followed by four years of probation, which

was imposed after he was convicted of, inter alia, dissemination of obscene



* Former Justice specially assigned to the Superior Court.
J-S46009-17



materials to minors, attempted unlawful contact with a minor, and

attempted sexual abuse of children. We affirm.

      Appellant’s charges were filed at two separate docket numbers and

stem from conduct involving three different minors.               The cases were

consolidated for trial. In the instant appeal, Appellant challenges only those

convictions related to the youngest of the three victims, L.W. However, we

briefly describe Appellant’s interaction with all three minors.

      In the fall of 2013, the State College Area High School (“SCAHS”)

employed Appellant to teach computer networking courses in its vocational

program.    Two minor female students, S.Z. and L.W., were enrolled in

Appellant’s course and sat in the back row of his classroom. In November,

another minor female student, L.P., began to unofficially attend Appellant’s

class instead of study hall with Appellant’s permission. Eventually, Appellant

encouraged her to enroll, promising that she would pass the course.

      Throughout the school year, Appellant sat in the back of the classroom

and talked to the girls who were the only girls in the class. He joined their

discussions about school, boys, and anime, a Japanese form of animated

film or television, as if he were a peer. Appellant sought access to L.W.’s

and L.P.’s cellphones on multiple occasions. He asked them why they locked

their cell phones, suggested that they must have nude photos on their cell

phones, and asked to access them.




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       Appellant’s inappropriate conduct did not stop at school. He became

friends with all three girls on Facebook and communicated with two of them,

L.W. and S.Z., through private messaging. L.W. was the target of most of

Appellant’s on-line activity. On November 25, 2013, Appellant sent L.W. a

link to a photograph of a young woman or teenager performing oral sex on a

man. After a three-minute delay, Appellant sent a message indicating that

the link was hijacked and he had not intended to send the pornographic

material.    He told L.W. not to click the link, unless she wanted to be

shocked.      He engaged L.W. in an extensive conversation in the early

morning of December 3, 2013, that continued into the evening.            The

conversation began with school-related topics, but near midday, Appellant

suggested that his “dares” would “shock” L.W. and “haunt [her] dreams.”

Commonwealth’s Exhibit 1.             This discussion included comments from

Appellant regarding pornography, including specific mention of Bible Black, a

pornographic anime.1        Appellant and L.W. discussed her sex life, and he

solicited naked photographs from her. Specifically, Appellant inquired about

L.W.’s “sexting pictures” and requested she send him pictures in a private

message. Id. When L.W. refused, Appellant said “you get an F.” Id. Then,


____________________________________________


1
  Bible Black is a pornographic anime based on an erotic video game, and it
places female students at an academy in graphic sexual situations, including
bondage and rape. Commonwealth Exhibit 14.



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Appellant insinuated he would be looking at pornography and waiting for

L.W. to send him a nude photograph.

        In January, Appellant implied to L.W. that he could change her grade,

but that there was not any class work she could do. Instead, L.W. had to

“motivate him” by midnight to improve her C+ to an A. Id. On April 24,

2014, Appellant requested pictures after L.W. got out of the shower, saying,

“pictures or it didn’t happen.” Id. On April 25, 2014, he told her to unlock

her phone so that he could see pictures of her.           Despite Appellant’s

continued insistence, L.W. never sent him any nude or sexually suggestive

photographs. Appellant’s last conversation with L.W. occurred on April 28,

2014. He then removed L.W. and the other girls from his Facebook friends

list.

        The authorities discovered Appellant’s conduct with respect to L.W.

through a series of events involving L.P. In late April 2014, Appellant placed

a flash drive labeled “Plan B” on L.P.’s desk. Initially, in front of all three

girls, Appellant claimed he did not know about the flash drive.      However,

once Appellant was alone with L.P., he told her to put naked pictures on the

flash drive as an alternative to taking the final exam. On May 8, 2014, L.P.

discussed the event with S.Z. S.Z. subsequently informed her mother and

her mother, in turn, reported Appellant’s conduct to the administration,

which notified the State College Police Department.




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        On the following Monday, May 14, 2014, Appellant was suspended

from his position at SCAHS pending a criminal investigation. On November

18, 2014, Appellant was charged with dissemination of obscene materials to

a minor with respect to L.W. and three counts of corruption of minors, one

count with respect to each girl. On April 6, 2015, the additional charges of

attempted sexual abuse of children and attempted unlawful contact with a

minor, both with respect to L.W., were filed.        The two dockets were

consolidated on May 8, 2015.

        On October 22, 2015, the case proceeded to trial. At trial, Appellant

testified on his own behalf. In his testimony, he offered explanations as to

why the sexually explicit link was not “knowingly” sent and contested that

his solicitations of nude photographs were made “jokingly.” N.T., 10/22/15,

at 355, 397. A jury convicted Appellant of all counts, and he received the

aforementioned sentence. Appellant filed a timely post-sentence motion on

May 31, 2016.2 On September 19, 2016, the trial court requested briefs on

the motion and extended the court’s deadline to decide the motion by thirty

days.    Appellant’s post-sentence motion was denied by operation of law

pursuant to Pa.R.Crim.P. 720 (B)(3) on October 31, 2016.


____________________________________________


2
     Appellant was sentenced on May 20, 2016.           The tenth day after
sentencing, May 30, 2016, was Memorial Day, and thus, Appellant timely
filed on the next available business day, May 31, 2016.



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       On November 3, 2016, Appellant filed this timely appeal.          He filed a

Pa.R.A.P. 1925(b) statement of errors complained of on appeal and the trial

court issued its Pa.R.A.P. 1925(a) opinion. On appeal, Appellant raises the

following issues for our review:

       I.     Did the trial court err in denying Appellant’s request for a
              criminal attempt-renunciation defense jury instruction,
              Pennsylvania Standard Jury Instruction 12.901C?

       II.    Did the trial court err by denying Appellant’s motion for
              judgment of acquittal on Centre County Criminal
              Information No. CP-14-CR-2090-2014, count 1, obscene
              and other sexual materials and performances -
              dissemination to minors, and in denying to instruct the
              jury with a binding instruction on this count . . . in that the
              Commonwealth did not prove beyond a reasonable doubt
              that Appellant acted knowingly when he sent the tinyurl [ 3]
              link?

Appellant’s brief at 11 (unnecessary capitalization omitted and footnote

added).

       Appellant’s first issue is a challenge to the trial court’s refusal to give a

requested jury instruction to the attempt charges.         Specifically, he argues

that the trial court erred when it denied his requested jury instruction

regarding a renunciation defense to the attempted unlawful contact with a

minor and attempted sexual abuse of children where he presented evidence

that he ceased Facebook activity on April 28, 2014.

____________________________________________


3
  The tinyurl link refers to the link to the pornographic picture that Appellant
sent to L.W. on November 25, 2013.



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      Our Supreme Court has articulated the relevant standard of review as

follows:

      In deciding whether a trial court erred in refusing to give a jury
      instruction, we must determine whether the court abused its
      discretion or committed an error of law. Where a defendant
      requests a jury instruction on a defense, the trial court may not
      refuse to instruct the jury regarding the defense if it is supported
      by evidence in the record.

Commonwealth v. Demarco, 809 A.2d 256, 260-61 (Pa. 2002) (citations

omitted).

      The evidence supporting such an instruction may be gleaned from a

defendant as a part of his case, from the evidence presented by the

Commonwealth in its case against him, or in his cross-examination of the

Commonwealth’s witnesses. Id. at 261 n.6. However, the trial court is not

required to provide legal instructions that cannot rationally be applied to the

facts adduced at trial. Commonwealth v. Hairston, 84 A.3d 657, 668 (Pa.

2014).     Thus, a defendant must establish that the evidence presented at

trial would reasonably support a verdict based on the desired renunciation

instruction. Id.

      Renunciation is an affirmative defense to the charge of criminal

attempt. The elements of criminal attempt are:

      (1) an intent to commit a specific crime; and (2) any act
      constituting a substantial step toward the commission of that
      crime. The substantial step test broadens the scope of attempt
      liability by concentrating on the acts the defendant has done and
      does not any longer focus on the acts remaining to be done
      before the actual commission of the crime. The defendant need

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    not actually be in the process of the crime when arrested in
    order to be guilty of criminal attempt.
Commonwealth v. Zingarelli, 839 A.2d 1064, 1069 (Pa.Super. 2003)

(internal citations and quotations omitted).

        It is a defense to criminal attempt when a defendant demonstrates

that,

        under circumstances manifesting a voluntary and complete
        renunciation of his criminal intent, the defendant avoided the
        commission of the crime attempted by abandoning his criminal
        effort and, if the mere abandonment was insufficient to
        accomplish such avoidance, by taking further and affirmative
        steps which prevented the commission thereof.

18 Pa.C.S. § 901(c)(1). Put simply, renunciation “requires a showing that

the     defendant   avoided   the   commission   of   the   crime   attempted   by

abandoning his criminal effort.” Zingarelli, supra, at 1072.

        We examine each of the attempt crimes for which Appellant was

charged in order to discern whether sufficient evidence was offered to permit

a jury finding that Appellant fully abandoned his criminal attempt.        In the

absence of such evidence, the instruction was not warranted.

        Regarding the first charge, an individual commits the offense of

unlawful contact with a minor when “he is intentionally in contact with a

minor . . . for the purpose of engaging in . . . sexual abuse of children as

defined in section 6312.”      18 Pa.C.S. § 6318.     Section 6312 prohibits, in

pertinent part, causing or knowingly permitting a minor to produce

photography of nudity for the purposes of sexual gratification. Hence, the



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attempted   crime   of   unlawful   contact    with   a   minor   required   the

Commonwealth to prove Appellant specifically intended to contact a minor

for the purposes of producing or acquiring nude photographs.

     Appellant’s primary support for a renunciation defense to his attempt

charges was the uncontested fact that he ceased contacting L.W. via

Facebook on April 28, 2014. Appellant’s brief at 25. Additionally, he relied

on his own testimony alleging that he decided to cease his inappropriate

discussions with L.W. Id. at 24-25.

     We note that 18 Pa.C.S. § 6318, unlawful contact with a minor, does

not require Appellant to commit the underlying enumerated offense.

Commonwealth v. Reed, 9 A.3d 1138, 1146 (Pa. 2010).               Appellant has

committed the crime once he has contacted the minor for the purpose of

causing or knowingly permitting a minor to photograph or film a sexual act.

Id.; see 18 Pa.C.S. § 6312(b). Thus, Appellant needed to provide evidence

showing complete renunciation of any substantial step he took towards the

crime of contacting a minor for the purpose of acquiring sexually explicit

photographs.   18 Pa.C.S. § 6318; See Commonwealth v. Gilliam, 417

A.2d 1203, 1205 (Pa.Super. 1980) (discussing the substantial step test).

     While the Commonwealth charged Appellant with the inchoate offense

of criminal attempt, Appellant’s substantial step was contacting L.W. for the

purpose of acquiring nude photographs.        He fully completed those actions

before he stopped communicating with L.W., who repeatedly refused to

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comply with Appellant’s demands.               Thus, Appellant did not show that he

“avoided the commission of the crime attempted by abandoning his criminal

effort.”   Zingarelli, supra at 1072.            With respect to attempted unlawful

contact with a minor, Appellant’s criminal effort was complete when he

contacted L.W. for the purpose of soliciting nude photographs. 18 Pa.C.S.

§§ 6318, 6312(b).         Thus, the trial court did not abuse its discretion or

commit an error of law when it refused to give the renunciation instruction

as to the offense of attempted unlawful contact with a minor.

       Appellant’s second criminal attempt charge stems from similar, but

distinct conduct. The underlying crime of sexual abuse of children requires

causing or knowingly permitting “a child under the age of 18 years to

engage in a prohibited sexual act or in the simulation of such act . . . if

[Appellant] knows, has reason to know or intends that such act may be

photographed, videotaped, depicted on computer or filmed.” 18 Pa.C.S. §

6312(b).4 Thus, to qualify for a renunciation jury instruction on the second

charge, Appellant needed to adduce evidence reasonably showing that he

completely and voluntarily renounced his intent to procure sexually explicit

photos from L.W. in such a way as to avoid the actual production of such

photos.    18 Pa.C.S. §§ 901, 6318; Zingarelli, supra at 1072.               In the
____________________________________________


4
    This attempt charge focused on the actual attempt to produce the
photographs, as opposed to the attempt to contact a minor for the purpose
of producing the photographs.



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alternative, Appellant needed to show that he took “further and affirmative

steps which prevented the commission” of the crime. 18 Pa.C.S. § 901(c).

     We find that there was no evidence in the record warranting a

renunciation instruction. Appellant induced L.W. to produce sexually explicit

photographs when he solicited the transfer of nude images from L.W.

Appellant’s renunciation, therefore, had to be sufficient to prevent the

production of a nude photograph by the minor, in this case L.W. However,

L.W. could have created a nude photograph, induced by Appellant’s prior

substantial steps, after Appellant ceased his Facebook activities.     Thus,

Appellant’s purported change-of-heart was not enough to prevent the crime

and entitle Appellant to a renunciation defense.         Appellant’s act of

terminating on-line contact was merely passive and not an active step

tending to prevent the commission of the crime. Appellant needed to take

further steps to demonstrate to L.W. that he had abandoned his efforts.

     However, Appellant never expressed to L.W., before or after April 28,

2014, that he no longer desired such material or that such requests were

inappropriate, or otherwise provided evidence that his abandonment

prevented the commission of the underlying crime.         Indeed, the only

evidence regarding activity after April 28, 2014, was provided by the

Commonwealth. That proof indicated that Appellant continued to seek nude




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photographs from the girls in person while in the classroom.5            Thus,

Appellant did not present or point to evidence at trial to reasonably support

a renunciation defense, and thus, we affirm the trial court’s denial of such an

instruction.

       Appellant’s next claim is a challenge to the sufficiency and weight of

the evidence supporting his conviction for dissemination to minors. We will

first distinguish weight and sufficiency claims, as Appellant conflates the two

distinct concepts.       A sufficiency of the evidence claim posits that the

evidence introduced by the Commonwealth does not establish each element

of the pertinent crime.       Commonwealth v. Widmer, 744 A.2d 745, 751

(Pa. 2000). A weight claim concedes that there is sufficient evidence, but

that some facts so outweigh the others that to ignore them or accord them

equal weight would be a miscarriage of justice. Id. at 751-52. A successful

challenge to the weight of the evidence results in a new trial, while a

successful challenge to the sufficiency of the evidence results in discharge.

Id. Thus, we first address Appellant’s sufficiency challenge.

       Whether the evidence was sufficient to support the conviction presents

a question of law; our standard of review is de novo and our scope of review

is plenary. Commonwealth v. Walls, 144 A.3d 926, 931 (Pa.Super. 2016)

____________________________________________


5
  This included the “Plan B” flash drive which led to the investigation into
Appellant’s activities.



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(citation omitted).        We are guided by the following well-established

standard:

       In reviewing the sufficiency of the evidence, we must determine
       whether the evidence admitted at trial, and all reasonable
       inferences drawn from that evidence, when viewed in the light
       most favorable to the Commonwealth as verdict winner, was
       sufficient to enable the fact finder to conclude that the
       Commonwealth established all of the elements of the offense
       beyond a reasonable doubt. It is well-established that the
       Commonwealth may sustain its burden of proof by means of
       wholly circumstantial evidence and the jury, while passing upon
       the credibility of witnesses and the weight of the evidence, is
       free to believe all, part, or none of the evidence.

Commonwealth v. Yandamuri, 159 A.3d 503, 514 (Pa. 2017) (quotation

marks and citations omitted).

       Appellant limits his challenge to the sufficiency of the evidence that he

“knowingly” disseminated.         The Commonwealth must prove that Appellant

“knowingly disseminat[ed] . . . explicitly sexual materials to a minor.” 18

Pa.C.S. § 5903(c).        Explicitly sexual materials is defined by statute, in

pertinent part, as follows: “any picture, photograph . . . or similar visual

representation or image of a person or part of the human body which depicts

nudity [or] sexual conduct, . . . and is harmful to minors.” Id.

       Appellant concedes that he sent a link to L.W., a minor, of sexually

explicit material.6 Appellant sent the sexually explicit link to L.W. during a

____________________________________________


6
  The link led to an image of a young woman or teenager engaging in oral
sex.
(Footnote Continued Next Page)


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conversation about fixing L.W.’s issues with her Netflix streaming. Appellant

contemporaneously told L.W. that the link was “hijacked,” 7 told L.W. not to

look at the link, and sent her a new link for downloading programs necessary

to troubleshoot Netflix.         Commonwealth Exhibit 1.          In his testimony and

brief, Appellant emphasized that the link was hijacked and, therefore, he

could not have knowingly disseminated the sexually explicit material.

Appellant’s brief at 35.

      However, the Commonwealth introduced evidence undermining the

credibility of Appellant’s testimony and his explanation for the link.           First,

Appellant waited three minutes before he explained his mistake to L.W.,

telling her not to click the link. Most tellingly, Appellant told L.W. not to look

at   the   picture     “unless    you    want       a   shock.”    (emphasis   added).

Commonwealth Exhibit 1.            The fact finder was free to credit or discredit

Appellant’s testimony as it saw fit.             Plainly, the evidence suffices, when

viewed in the light most favorable to Commonwealth, to support Appellant’s

conviction for knowingly disseminating sexually explicit materials to L.W., a

minor.



                       _______________________
(Footnote Continued)


7
   At trial, Appellant explained that a malware virus or hacker can redirect a
link so that the intended link sends the user to a different website. N.T.,
10/22/15, at 355.



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        Next, we turn to Appellant’s challenge to the weight of the evidence.

This Court does not reexamine the underlying evidence when reviewing a

weight of the evidence claim. Commonwealth v. Konias, 136 A.3d 1014,

1022.      Rather, “we evaluate the trial court’s exercise of discretion in

resolving the challenge.” Id. Thus, a weight of the evidence challenge must

be first presented to the trial court in a post-sentence motion in order to be

preserved.     Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa.Super.

2012). Appellant submitted a post-trial motion challenging the weight of the

evidence and, therefore, preserved the issue and we may examine his claim

on its merits.

        We give the utmost deference to the trial court’s ruling on a weight

claim because the trial judge heard and saw the evidence presented at trial.

Commonwealth v. Leatherby, 116 A.3d 73, 82 (Pa.Super. 2015). Hence,

we will not overrule a trial court’s weight determination unless it is so

contrary to the evidence as to shock one’s sense of justice. Konias, supra,

at 1022.

        In the instant case, Appellant contends that the fact finder accorded

too little weight to his testimony regarding the hijacking of the tinyurl link.

Thus, he contends the finding that he knowingly disseminated was against

the weight of the evidence.    However, Appellant fails to acknowledge that

the jury was clearly entitled to weigh this testimony in the context of the

other evidence adduced at trial. The jury’s rejection of Appellant’s testimony

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did not shock the trial court’s conscience and, hence, we find no abuse of

discretion by the trial court. Widmer, supra, at 751-52.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/17/2017




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