J-S94014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RICHARD EUGENE MOYER, JR.

                            Appellant                  No. 742 MDA 2016


             Appeal from the Judgment of Sentence March 4, 2016
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0004588-2014


BEFORE: LAZARUS, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                            FILED MARCH 01, 2017

        Richard Eugene Moyer, Jr., appeals from the judgment of sentence

entered in the Court of Common Pleas of Lancaster County after a jury

convicted him of fifteen counts of possession of child pornography1 and one

count each of distribution of child pornography2 and criminal use of a

communication facility.3 Upon careful review, we affirm Moyer’s convictions

and amend his sentencing and SORNA registration orders.



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. § 6312(d).
2
    18 Pa.C.S.A. § 6312(c).
3
    18 Pa.C.S.A. § 7512.
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     In May 2014, Special Agent Daniel Hasenauer of the Pennsylvania

Office of Attorney General conducted an internet-based investigation of child

exploitation in which he attempted to locate computer users who had

downloaded and/or distributed child pornography. During the course of this

investigation, Agent Hasenauer made a direct connection with Moyer’s

computer and downloaded a file containing child pornography. As a result,

authorities obtained a search warrant to search Moyer’s home for child

pornography. Armed with the warrant, officials seized Moyer’s computer. A

forensic examination revealed images Hasenauer believed to be child

pornography, as they had graphic titles indicating pornographic depiction of

“preteens” between the ages of 3 and 12.

     Moyer, who resided in the basement of the residence belonging to his

parents, was present during the execution of the warrant and agreed to

speak with authorities.     At first, Moyer denied that there was child

pornography present on his computer.        However, he subsequently told

agents that he occasionally came across it when downloading files, but he

always deleted it immediately.    He also admitted using the search term

“teen” to “get the files that [he] like[s] to see[.]”     Trial Exhibit 10-A,

Transcript of Moyer Interview, at 12.

     After the interview was concluded, Moyer was arrested. On the drive

to the police station, Moyer told Agent Hasenauer that “he was targeting

[the] 13, 14, 15-year old age group” and that it was not illegal to download

child pornography as long as he deleted it. N.T. Trial, 12/2/15, at 138.

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      At trial, Special Agent David Middendorf, an expert in forensic

computer analysis, testified that, on scene at Moyer’s residence, he initially

determined that Moyer’s computer contained at least 13 images and one

video of apparent child pornography. He later examined the computer and

found it contained 17 images and three videos, which had been deleted and

were in the computer’s recycling bin.

      Moyer testified and stated that he was in the business of refurbishing

computers and had purchased this particular computer at a yard sale; he

had added a second hard drive that he had purchased years before that. He

claimed that there was a “mix of adult and child pornography” on the hard

drive when he purchased it, but that he had deleted all of it.     N.T. Trial,

12/3/15, at 216.    He further testified that he had subsequently “stumbled

across” another pornographic file, which led to the discovery of additional

files, all of which he claimed to have deleted. Id. at 220. Moyer claims he

never intentionally made any of the files available for sharing on Shareaza,

the file-sharing network he utilized.

      On December 3, 2015, a jury found Moyer guilty of the above charges.

On March 4, 2016, the court sentenced him to an aggregate term of five to

15 years’ imprisonment.      Moyer was also ordered to register as a sex

offender for life pursuant to the Sex Offender Registration and Notification




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Act (“SORNA”).4       Moyer’s post-sentence motions were denied. On May 6,

2016, he filed a timely notice of appeal to this Court, followed by a court-

ordered concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b).

        On appeal, Moyer raises the following issues for our review:

        1.     Was the evidence presented by the Commonwealth
        insufficient to sustain [Moyer’s] conviction[s] for [c]ounts 2, 8,
        9, 11, and 16?

        2. Were the sentences imposed on [c]ounts 1 through 7, of two
        and one-half to eight years[’] incarceration, illegal, as the
        statutory maximum sentence for a third[-]degree felony is seven
        years’ incarceration?

        3. Where [Moyer] was convicted on the same date of one count
        of distribution of child pornography . . . and fifteen counts of
        possession of child pornography . . . and all offenses were
        docketed to the same information number, should he have been
        sentenced to 25 years of sex[-]offender registration pursuant to
        42 Pa.C.S. §§ 9799.14 and 9799.15, rather than lifetime
        registration?

Brief of Appellant, at 6.

        Moyer challenges the sufficiency of the evidence as to five of his

convictions.     We are guided by the following standard of review when

presented with a challenge to the sufficiency of the evidence:

        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
____________________________________________


4
    42 Pa.C.S.A. §§ 9799.10-9799.41.



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      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. Any doubt about the defendant’s guilt is
      to be resolved by the fact finder unless the evidence is so weak
      and inconclusive that, as a matter of law, no probability of fact
      can be drawn from the combined circumstances.

      The Commonwealth may sustain its burden by means of wholly
      circumstantial evidence. Accordingly, the fact that the evidence
      establishing a defendant’s participation in a crime is
      circumstantial does not preclude a conviction where the evidence
      coupled with the reasonable inferences drawn therefrom
      overcomes the presumption of innocence. Significantly, we may
      not substitute our judgment for that of the fact finder; thus, so
      long as the evidence adduced, accepted in the light most
      favorable to the Commonwealth, demonstrates the respective
      elements of a defendant’s crimes beyond a reasonable doubt,
      the appellant’s convictions will be upheld.

Commonwealth v. Franklin, 69 A.3d 719, 722–23 (Pa. Super. 2013),

quoting Commonwealth v. Pettyjohn, 64 A.3d 1072 (Pa. Super. 2013)

(citations and quotation marks omitted).

      Moyer was convicted under section 6312 of the Crimes Code, which

provides that “[a]ny person who intentionally views or knowingly possesses

or   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.” 18 Pa.C.S.A. § 6312.

      Moyer first challenges his conviction as to count 16, on the basis that it

was not possible for the jury to determine whether the female depicted in

the photo was under the age of 18. Moyer asserts that:




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      [T]he image associated with [c]ount 16, involves a female who is
      not facing the camera, and whose face cannot be seen. While
      there is no question that she is engaged in sexual contact with
      an adult male, there is simply no way to determine, based on
      the photograph, that the female’s age is under 18.          The
      Commonwealth did not present any expert testimony regarding
      the age of the alleged children in any of the photographs.

Brief of Appellant, at 13.   Moyer cites to subsection (e) of section 6312,

which provides that “[i]n the event a person involved in a prohibited sexual

act is alleged to be a child under the age of 18 years, competent expert

testimony shall be sufficient to establish the age of said person.”        18

Pa.C.S.A. § 6312(e) (emphasis added). Moyer asserts that, without expert

testimony, there was insufficient evidence for the jury to determine the

female was under the age of 18. There is no merit to this claim.

      In its Rule 1925(a) opinion, the trial court concludes that

      [Moyer] provides no compelling reason to disturb any of his
      convictions. The age of the individual depicted in the image
      associated with count 16 is not so obviously 18 or older as to
      warrant reversing the jury’s finding. Far from it, in fact, as the
      jury could very reasonably find the age element proven with
      regard to this image.       This is particularly true when one
      considers the title associated with the image, which includes the
      terms “Pedo” and “Childporn.”

Trial Court Opinion, 7/6/16, at 8 (citations to record omitted).

      We agree with the trial court’s rationale. As this court has previously

noted with regard to an identical claim:

      Proof of age, like proof of any other material fact, can be
      accomplished by the use of either direct or circumstantial
      evidence, or both. The proof necessary to satisfy the element of
      age in a dissemination or possession of child pornography case is
      not limited to expert opinion testimony. Subsection (e) merely
      allows that if competent expert testimony is presented it shall be

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       sufficient to establish the age element of the crime.      This
       subsection does not mandate such proof in order to sustain a
       conviction.   Rather, the outward physical appearance of an
       alleged minor may be considered by the trier of fact in judging
       the alleged minor’s age.

Commonwealth v. Robertson-Dewar, 829 A.2d 1207, 1212 (Pa. Super.

2003) (emphasis added).          Here, the jury, based on everyday observations

and common life experiences as well as the file name of the image, 5

assessed the age of the female depicted in the photo associated with count

16 and concluded, beyond a reasonable doubt, that she was under the age

of 18. We see no reason to disturb the jury’s finding.

       Moyer next challenges his convictions as to counts 2, 8, 9 and 11,

asserting that there was insufficient evidence that the related images

depicted a child engaging in a prohibited sexual act6 or simulation of such an

act. Moyer claims that the images are neither titillating nor provocative and

thus, the determination that the photos were taken for the purpose of sexual

stimulation or gratification “could only have been pure speculation on the

part of the jury.” Brief of Appellant, at 17. Moyer cites Commonwealth v.

Savich, 716 A.2d 1251 (Pa. Super. 1998), and Commonwealth v. Tiffany,

926 A.2d 503 (Pa. Super. 2007), two cases in which this Court found that
____________________________________________


5
 The image was titled “PTHC pedo NEW Childporn Private Daughter Torpedo
Ranchi loli.” N.T. Trial, 12/2/15, at 118.
6
  Section 6312(g) of the Crimes Code defines “prohibited sexual act” to
include “lewd exhibition of the genitals or nudity if such nudity is depicted for
the purpose of sexual stimulation or gratification of any person who might
view such depiction.” 18 Pa.C.S.A. § 6312(g).



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pictures were taken for the purpose of sexual gratification or stimulation,

and attempts to distinguish them. Specifically, Moyer argues that, unlike in

those cases, here “nothing is known about the photographers who took the

pictures[.] There is no indication that the pictures were taken surreptitiously

or without the knowledge of the children photographed, and there is nothing

particularly sexualized or provocative about the pictures.” Brief of Appellant,

at 17. We disagree.

      In concluding that the Commonwealth presented sufficient evidence to

support Moyer’s convictions as to the counts in question, the trial court

found as follows:

      As for counts 2, 8, 9, and 11, the related images may not depict
      “sexual acts” in the usual sense of the words. But the child
      pornography statute defines “prohibited sexual act” to include
      “lewd exhibition of the genitals or nudity if such nudity is
      depicted for the purpose of sexual stimulation or gratification of
      any person who might view such depiction.” [18] Pa.C.S.A. §
      6312(g). These images qualify, as it is surely a reasonable
      inference from the evidence that the nudity depicted in these
      images was intended for these purposes. And once again, the
      titles of the images . . . further refute [Moyer’s] position.

Trial Court Opinion, 7/6/16, at 9 (citations to record omitted).

      A review of the images in question, which all depict nude minors in

various poses, supports the trial court’s conclusion.   The image associated

with count 2, named “lolitaguy mafiasex.RU_children_kids_hard_00293 child

porn,” see N.T. Trial, 12/2/15, at 115, depicts a nude boy posing in what

can only be described as a provocative manner outside of a bathroom. The

image associated with count 8, entitled “Carl David Hyman, Jr., Children


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pussy 106 – 3 year old witch nudist,” id. at 116, depicts a group of nude

children, male and female, posing with what appear to be a flowing white

curtain and a bamboo window blind.       The image associated with count 9,

named “Carl David Hyman, Jr., Kiddie Pussy 06 – witch pedo pthc nudist,”

id., shows a nude female child with the arm of an adult male appearing to

restrain her in the upper chest area.      Notably, the photograph is framed

such that the face of the adult male is not included in the image. Finally, the

image associated with count 11, titled “Jailbait 033 – Jana Young Girls in

Thongs showing off,” id. at 117, depicts an adolescent female with her hand

on her hip, leaning provocatively toward the camera, such that her breasts

are emphasized in the photograph.

      Here, again, the jury used its life experience and common sense to

conclude that these images of nude children and adolescents were taken for

the purpose of sexual stimulation or gratification.     Furthermore, the file

names associated with each image, while not necessarily descriptive of the

content of the photos themselves, clearly indicated an intent that the photos

be obtained and used for the purposes of sexual gratification by the viewer.

Accordingly, Moyer’s convictions as to these counts must be affirmed.

      Next, Moyer challenges the legality of his sentences as to counts one

through seven.    Specifically, the trial court imposed sentences of 2½ to 8

years’ imprisonment on each count, all of which were graded as felonies of

the third degree. The statutory maximum penalty for third-degree felonies

is seven years.   See 18 Pa.C.S.A. § 1103(3) (sentence for felony of third

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degree may not exceed seven years’ imprisonment).         The Commonwealth

agrees with Moyer’s position, and the trial court has requested that we

directly vacate the illegal portion of Moyer’s sentence without remanding for

resentencing, as only the maximum sentence is affected and the court’s

overall sentencing scheme is not disturbed. “Where it is determined that a

sentence is illegal, we may remand for resentencing or vacate and amend

the invalid sentence directly.” Commonwealth v. Huckleberry, 631 A.2d

1329, 1334 (Pa. Super. 1993). Accordingly, because the overall sentencing

scheme is unaffected by the illegality present here, we will amend Moyer’s

sentence directly without remanding to the trial court.

      Finally, Moyer challenges the trial court’s imposition of a lifetime

registration requirement pursuant to SORNA.       Moyer was convicted for a

violation of section 6312(c), which carries a registration requirement of

twenty-five years, as well as multiple convictions under section 6312(d),

which each require that he register for a period of 15 years. At sentencing,

the court imposed lifetime registration as a Tier III offender based on its

finding that Moyer had committed two or more Tier I or II offenses. See 42

Pa.C.S.A. § 9799.14(d)(16) (registration as Tier III offender required where

defendant has two or more convictions for offenses listed as Tier I or Tier II

offenses).   In doing so, the court relied upon this Court’s decision in

Commonwealth v. Merolla, 909 A.2d 337 (Pa. Super. 2006), in which we

applied the Megan’s Law II-era precursor to section 9700.14(d)(16) and held




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that multiple convictions, even when arising from a single course of conduct

and prosecution, mandate lifetime registration.

       Subsequent to the imposition of Moyer’s sentence, our Supreme Court

decided Commonwealth v. Lutz-Morrison, 143 A.3d 891 (Pa. 2016), in

which the Court held that section 9799.14(d)(16) of SORNA may not be

applied to a defendant whose two or more qualifying Tier I or II convictions

arose from a single course of conduct and resulted from a single

prosecution.     In so holding, the court noted that SORNA encompasses a

recidivist philosophy and, as such, requires an act, a conviction, and a

subsequent act to trigger lifetime registration for multiple offenses otherwise

subject to a fifteen- or twenty-five-year period of registration. Id. at 895.

       The   Commonwealth         concedes     that,   pursuant   to   Lutz,   Moyer’s

registration order must be vacated or amended to reflect the appropriate 25-

year registration requirement.7           Accordingly, as we did with his illegal

sentence, we will amend Moyer’s registration order as required by Lutz.

       Convictions affirmed; judgments of sentence affirmed as to counts

eight through sixteen; judgments of sentence as to counts one through

seven amended to reflect the correct statutory maximum sentence of seven


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7
  The trial court issued its opinion prior to the Supreme Court’s decision in
Lutz and, thus, continued to rely on Merolla.              However, the court
acknowledged the pendency of Lutz, noting that “unless and until Lutz-
Morrison and [its companion case] A.S. hold otherwise, [Moyer] is subject
to lifetime registration.” Trial Court Opinion, 7/6/16, at 10.



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years; SORNA registration order amended to reflect 25-year registration

requirement. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/1/2017




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