J-A26040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    TODD DONALD ATKINSON                       :
                                               :   No. 1763 MDA 2016
                       Appellant

          Appeal from the Judgment of Sentence September 27, 2016
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0000336-2015


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

MEMORANDUM BY RANSOM, J.:                             FILED JANUARY 17, 2018

        Appellant, Donald Todd Atkinson, appeals from the judgment of

sentence of twenty-five to fifty years of incarceration imposed following his

conviction of six counts of child pornography and one count of criminal use of

a communication facility.1 We affirm.

        The following statement of facts and procedural history is garnered from

the trial court opinion, which is supported by the record.

              [In September 2014], Corporal Gerhard Goodyear of the
        Pennsylvania State Police was conducting an investigation of file
        sharing networks looking for files containing markers for child
        pornography. This investigation led him to a computer with an IP
        address identifying Windstream Communications as the internet
        provider. In turn, the Windstream account associated with that
        IP address identified the subscriber as Quiche Amour, LLC, with a


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1   Respectively, see 18 Pa.C.S. §§ 6312(d), and 7512(a).
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      billing address of 180 Heatherwood Drive, Ephrata, Pennsylvania,
      which was the home address of [Appellant] and his wife.

            [In November 2014], a search warrant was granted
      authorizing the seizure and search of all electronic evidence
      located at the specified address. This warrant was executed [] by
      Trooper John Sours [(“Trooper Sours”)] and other officers of the
      Pennsylvania State Police. During the execution of the search
      warrant, Trooper Sours spoke with [Appellant] in the kitchen of
      the residence and asked if he had been looking at child
      pornography.     [Appellee] replied that he had viewed child
      pornography on his home computer. Then, after a long pause,
      [Appellant] added that had been years ago. It was determined
      during the search that the residence did not have an internet
      connection and that the computer for which Windstream provided
      internet access was located at a business, operated by
      [Appellant’s] wife and at which [Appellant] worked, located at an
      address in Akron, Pennsylvania. Officers went to that address with
      [Appellant’s] wife, who consented to a search of that location, and
      seized a computer and a thumb drive, both of which were
      subsequently determined to contain images of child pornography.
      No evidence of child pornography was found in [Appellant’s] home
      or on any electronic device seized from the home.

Trial Court Opinion, 2/21/2017, at 1-4.

      In February 2015, Appellant was charged with six counts of child

pornography and one count of criminal use of a communication facility. In

June 2015, Appellant filed an omnibus pretrial motion arguing that the search

warrant for Appellant’s residence lacked sufficient probable cause, and the

statements made by Appellant while in the presence of police were in violation

of his Fifth Amendment rights.    Appellant simultaneously filed a motion in

limine to exclude his statement regarding past viewing of child pornography

in his home. In his motion in limine, Appellant argued that the statement was

irrelevant, that the statement should be excluded as unfairly prejudicial

pursuant to Pa.R.E. 403, and that the statement should be excluded pursuant

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to Pa.R.E. 404(b) as impermissible evidence of a prior bad act. Following a

hearing, the Honorable David L. Ashworth denied Appellant’s motions in

November 2015.

       On the first day of trial in April 2016, Appellant filed a motion in limine

renewing his motion to exclude his statement. The Honorable James P. Cullen

denied the motion, and trial commenced.          Appellant was convicted on all

counts. In September 2016, Appellant was sentenced to twenty-five to fifty

years of incarceration on each count of child pornography plus five years of

probation for the criminal use of a communication facility.2 All sentences were

to be served concurrently.

       Appellant timely filed a notice of appeal and a court-ordered Pa.R.A.P.

1925(b) statement.3 The trial court filed a responsive opinion.




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2 In October 2010, Appellant pled guilty to two counts of indecent assault, and
one count each of criminal solicitation, endangering the welfare of children,
corrupting the morals of minors, and indecent exposure. CP-36-CR-0001794-
2009. See 18 Pa.C.S. §§ 3126(a)(7), 902(a), 4304(a), and 3127(a),
respectively. Due to Appellant’s prior sexual offense convictions, he was
subject to mandatory minimum and maximum sentence terms for his instant
sexual offenses. 42 Pa.C.S. § 9718.2(a)(1), (b) (outlining the mandatory
minimum and maximum sentences for sexual offenders).

3  In October 2016, Appellant petitioned the court for an enlargement of time
to file the 1925(b) statement. This motion was granted by the trial court,
which “granted counsel twenty days from receipt of the transcript to file his
statement of errors complained of on appeal.” Trial Court Opinion, 2/21/2017,
at 3 n.10. Counsel received the transcript on January 12, 2017, and timely
filed the court-ordered statement on February 1, 2017, twenty days from
receipt. Id.

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      Appellant presents a single question for our review, wherein he renews

the challenges first raised in his motion in limine. See Motion in Limine to

Exclude Statement from Defendant that he had Viewed Child Pornography in

the Past, 6/25/2015.      Essentially, Appellant asserts that his statement

regarding his past viewing of child pornography in his home was irrelevant,

that it should have been excluded as unfairly prejudicial pursuant to Pa.R.E.

403, and that the statement should have been excluded pursuant to Pa.R.E.

404(b) as impermissible evidence of a prior bad act. Appellant’s Brief at 5,

10-11, and 13-19. We note that Appellant has preserved the issue of the

admission of his statement by litigating the pre-trial motion in limine. See

Pa.R.E., 103(a)(1)(A); Pa.R.E. 103(b).

      “The admissibility of evidence is within the sound discretion of the trial

court.” Commonwealth v. Estepp, 17 A.3d 939, 945 (Pa. Super. 2011).

We examine a trial court’s decision concerning the admissibility of evidence

for an abuse of discretion. Commonwealth v. Dengler, 890 A.2d 372, 379

(Pa. 2005). An abuse of discretion is not merely an error of judgment, but it

is rather the overriding or misapplication of the law, or the exercise of

judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-

will or partiality, as shown by the evidence of record. Commonwealth v.

Carroll, 936 A.2d 1148, 1152–53 (Pa. Super. 2007), appeal denied, 947 A.2d

735 (2008).

      Relevant evidence is that which has “any tendency to make a fact more

or less probable than it would be without the evidence [,] and the fact is of

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consequence in determining the action.”         Pa.R.E. 401(a), (b).      Relevant

evidence may be excluded “if its probative value is outweighed by a danger of

… unfair prejudice, confusing the issues, [or] misleading the jury[.”] Pa.R.E.

403. “‘Unfair prejudice’ means a tendency to suggest decision on an improper

basis or to divert the jury's attention away from its duty of weighing the

evidence impartially.”    Id. cmt.     However, as our Supreme Court has

observed:

     The [trial] court is not ... required to sanitize the trial to eliminate
     all unpleasant facts from the jury's consideration where those
     facts are relevant to the issues at hand and form part of the
     history and natural development of the events and offenses for
     which the defendant is charged.

Commonwealth v. Paddy, 800 A.2d 294, 308 (Pa. 2002) (citing

Commonwealth v. Lark, 543 A.2d 491, 501 (Pa. 1988)). “Evidence of a

prior crime may also be admitted to show a defendant's actions were not the

result of a mistake or accident, ‘where the manner and circumstances of two

crimes are remarkably similar.’” Commonwealth v. Tyson, 119 A.3d 353,

359 (Pa. Super. 2015), appeal denied, 128 A.3d 220 (2015) (citing

Commonwealth v. Kinard, 95 A.3d 279, 294–95 (Pa. Super. 2014)); see

also Pa.R.E. 404(b)(2).




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       In the instant case, we agree with the sound reasoning of the trial

court,4 which concluded that Appellant’s statement was both relevant and

admissible to prove absence of mistake or accident:

              [Appellant] made this statement to Trooper Sours after the
       search warrant had been explained to him and it would, therefore,
       be relevant to his knowledge and absence of mistake or accident.
       Child pornography had recently been viewed late at night on a
       computer, the billing address for which was [Appellant]'s home
       address. That computer was located at [Appellant]'s wife's place
       of business where [Appellant] worked. The child pornography was
       viewed at a time when [Appellant] would have had access to the
       computer but others would not since the business would have
       been closed at the time. [Appellant]'s statement that he had
       viewed child pornography in the past would be indicative of intent
       and absence of mistake in that it supports the inference that the
       presence of child pornography on the computer at [Appellant]'s
       wife's place of business was not the result of accidental exposure.

Trial Court Opinion, 2/21/2017, at 8.

       The trial court was not required to eliminate all unpleasant facts from

the jury’s consideration, and Appellant’s statement to police that he had

viewed child pornography on his home computer years prior was admissible

as an exception to Pa.R.E. 404(b). Paddy, 800 A.2d at 308. Moreover, the



____________________________________________


4 As the Honorable David L. Ashworth first denied Appellant’s motion in limine
to exclude Appellant’s statement in November 2015, when Appellant renewed
his motion in limine in April 2016, the Honorable James P. Cullen, sitting as
the trial judge, the coordinate jurisdiction rule precluded Judge Cullen from
altering the ruling. Riccio v. Am. Republic Ins. Co., 705 A.2d 422, 425 (Pa.
1997) (recognizing that “a later motion should not be entertained or granted
when a motion of the same kind has previously been denied, unless
intervening changes in the facts or the law clearly warrant a new look at the
question”) (citing Goldey v. Trustees of the Univ. of Pennsylvania, 675
A.2d 264, 267 (Pa. 1996).

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J-A26040-17


temporal relationship between the instant offenses and the prior bad acts

referenced in Appellant’s statement could not diminish the statement’s

probative value in the instant case where, (1) the statement did not specify

how many years ago the conduct occurred, and (2) the utility of the statement

was to establish Appellant’s knowledge. Commonwealth v. Drumheller,

808 A.2d 893, 905 (2002) (holding that “[a]lthough evidence of (prior

occurrences) which is too remote is not properly admissible ... it is generally

true that remoteness of the prior instances … affects the weight of that

evidence and not its admissibility”).

      Here, the probative value of the statement outweighed the potential for

unfair prejudice. Additionally, the trial court proactively took steps to mitigate

against any potential prejudice of Appellant by specifically cautioning the jury

not to become inflamed by the nature of the materials. N.T. 4/6/2016, at

845-47. The trial court further explained that Appellant was not charged with

viewing child pornography in his home in connection with the statement. Id.

      Accordingly, we discern no abuse of discretion by the trial court in

admitting Appellant’s statement of prior bad acts.

      Judgment of sentence affirmed. Jurisdiction relinquished.




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J-A26040-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/17/2018




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