J-A23027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL S. BERRY, JR.                      :
                                               :
                       Appellant               :   No. 1206 WDA 2017

             Appeal from the Judgment of Sentence April 13, 2017
      In the Court of Common Pleas of Greene County Criminal Division at
                        No(s): CP-30-CR-0000155-2016


BEFORE: BOWES, J., SHOGAN, J., and STABILE, J.

MEMORANDUM BY SHOGAN, J.:                           FILED DECEMBER 04, 2018

       Appellant, Michael S. Berry, Jr., appeals from the judgment of sentence

entered on April 13, 2017.1 We affirm.

       The trial court summarized the facts of the case in its opinion denying

Appellant’s post-sentence motion as follows:

       [T]he Commonwealth indicated that [Appellant] and two (2) co-
       workers3, all joined at the above number and term, while
       employed as Corrections Officers at SCI Greene, a maximum
       security facility, engaged in a practice of transferring property to
       inmates in an unauthorized and illegal manner.                  The
       Commonwealth also charged and the jury convicted [Appellant] of
       the crime [r]ecklessly [e]ndangering another person as a result of
       conduct which permitted the transfer of a homemade knife from
____________________________________________


1 Appellant mistakenly characterized the judgment of sentence as entered on
April 17, 2017, the date it was docketed in the common pleas court. However,
the imposition date of a judgment of sentence is the date it is pronounced in
open court, not the date it is docketed. Commonwealth v. Duffy, 143 A.3d
940 (Pa. Super. 2016); Commonwealth v. Green, 862 A.2d 613 (Pa. Super.
2004). Appellant’s judgment of sentence was pronounced on April 13, 2017.
J-A23027-18


       one inmate to another.          This [was] as a result of a meeting
       arranged by [Appellant].
              3   [T]he Co-Defendants were acquitted of all charges.

             The [c]ourt heard various testimony regarding the practice
       of confiscating and awarding property to inmates. A fair reading
       of the evidence showed that there existed an institutional practice
       of recovering and storing confiscated property (primarily
       electronic related property) from the “HOT TRASH.” [2]
       Correctional Officers or their supervisors would then engage in
       allowing the transfer of property in exchange for giving of
       information by inmates.

             An engraving machine was used to mark the property as
       belonging to the inmate to which the property was transferred. It
       should be noted that each of the Co-Defendants were members of


____________________________________________


2  Robert D. Gilmore, the Superintendent of SCI Greene, described “hot trash”
as inmates’ property that is discarded, confiscated, or not wanted. N.T.,
1/24/17, at 52–53; N.T., 1/25/17, at 49. The property is placed in a bin
labeled “hot trash.” Id. The bins are located in two places, the “receiving
and discharge area” and the security area that is “inside the fences of the
institution.” Id. at 53, 81. Superintendent Gilmore testified that if property
is in the hot trash bin, it is considered the property of the institution. Id. Hot
trash is stored within the state correctional institution until “it’s taken outside
of the facility,” where it then is placed into a special dumpster with a lock until
it is “picked up by a vendor and is destroyed.” Id. at 55, 106. Lieutenant
Stephen Silbaugh, security lieutenant at SCI Greene, labeled hot trash as “our
most sensitive property in the security department” and made clear that
inmates “absolutely” are not to have access to hot trash, and they are not to
be “around it, near it, push it [in a cart, or] touch it. . . .” Id. at 163, 166–
167. Similarly, correctional officers are not “permitted to go through the hot
trash and take property out of that receptacle.” Id. at 166. Lieutenant
Silbaugh also described the procedure when property initially is confiscated,
explaining that it first is held in the security department’s property cage. Id.
at 184. A determination is made whether the property is unserviceable and
whether it “serves no other purpose for the institution, that there is no
legitimate intrinsic value for us to retain it.” Id. at 185. In that situation, the
property is put in the hot trash. Id.



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       the “search team.”[3] There was testimony that a meeting was
       held regarding this procedure/practice and that a directive was
       issued that this practice would no longer be permitted. This
       specific meeting was testified to as being held on September 24,
       2014.

Post Sentence Motion Opinion and Order, 7/20/17, at unnumbered 3.

       Following a four-day trial, a jury convicted Appellant of two counts of

unlawful    use   of   computer      and       other   computer   crimes,   18   Pa.C.S.

§ 7611(a)(2), and one count of recklessly endangering another person




____________________________________________


3   Lieutenant Silbaugh, Appellant’s immediate supervisor, supervised the
search team. N.T., 1/24/17, at 121. Correction officers can bid for the search
team, and bids are “governed by time and service.” Id. at 122; N.T., 1/25/17,
at 69. Duties of team members included “individual responsibilities to conduct
cell searches, . . . person searches of inmates, [and] assist and participate in
investigations.” Id. at 122. Search team members also have specific orders
“to properly log and submit any and all documents necessary. . . .” Id. at
123. Lieutenant Silbaugh explained that search team members bear the
responsibility to:

       conduct specific cell searches, to identify a specific inmate and go
       and search that inmate’s property. And you’re searching for
       contraband, you’re searching for compliance, you’re looking at
       that individual’s property to see if he is in compliance. You want
       to look at his electronic items to see if they were tampered with,
       or are actually registered to him. You want to look at the amount
       of property he has in his cell. An inmate that has too much
       property in his cell is probably too affluent. There is a reason that
       an inmate has too much property, because property equates to
       money, money equates to power.

N.T., 1/24/17, at 129–130. Captain Dave Mitchell, a former search team
supervisor, testified similarly. N.T., 1/25/17, at 25–37.




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(“REAP”), 18 Pa.C.S. § 2705.4              The trial court ordered a presentence

investigation report (“PSI”) and sentenced Appellant on April 13, 2017, “to a

total Sentence of not less than 30 days nor more than 1 year followed by 2

years of Probation and [Appellant] was granted the privilege of work release.”

Post Sentence Motion Opinion and Order, 7/20/17, at unnumbered 2.

       Appellant filed a timely post-sentence motion, which the trial court

denied on July 20, 2017. Appellant then filed a timely notice of appeal; both

Appellant and the trial court complied with Pa.R.A.P. 1925.

       Appellant raises the following two questions on appeal:

       1. Was the evidence sufficient to convict the accused of recklessly
       endangering another person?

       2. Was the evidence sufficient to convict the accused of [u]nlawful
       use of computer and other computer crimes[?]

Appellant’s Brief at 24.

       In reviewing the sufficiency of the evidence, we must determine whether

the evidence admitted at trial and all reasonable inferences drawn therefrom,

viewed in the light most favorable to the Commonwealth as verdict winner,

were sufficient to prove every element of the offense beyond a reasonable

doubt.    Commonwealth v. Von Evans, 163 A.3d 980, 983 (Pa. Super.



____________________________________________


4  Appellant was acquitted of tampering with records or identification and
conspiracy to commit obstructing administration of law or other government
function. In addition, the trial court granted a directed verdict or otherwise
dismissed the charge of conspiracy to commit criminal mischief. Post
Sentence Motion Opinion and Order, 7/20/17, at unnumbered 1 n.1.

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2017).    “[T]he facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence.”              Commonwealth v.

Williams, 176 A.3d 298,306 (Pa. Super. 2017). It is within the province of

the fact-finder to determine the weight to be accorded to each witness’s

testimony and to believe all, part, or none of the evidence. Commonwealth

v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018). The Commonwealth may

sustain its burden of proving every element of the crime by means of wholly

circumstantial evidence.        Commonwealth v. Enix, 192 A.3d 78, 81 (Pa.

Super. 2018).      Moreover, as an appellate court, we may not re-weigh the

evidence    and    substitute     our   judgment   for   that   of   the   fact-finder.

Commonwealth v. Rogal, 120 A.3d 994 (Pa. Super. 2015).

       Appellant’s first issue5 assails his conviction of REAP, which provides:

“A person commits a misdemeanor of the second degree if he recklessly

engages in conduct which places or may place another person in danger of

death or serious bodily injury.” 18 Pa.C.S. § 2705. The degree of culpability

required is recklessness, defined in 18 Pa.C.S. § 302, as follows:

       (b) Kinds of culpability defined.--
____________________________________________


5 We note that in Appellant’s first issue, Appellant wholly failed to refer to the
notes of testimony. Appellant’s Brief at 35–42. Indeed, with transcripts
containing nearly 900 pages, Appellant did not cite to the notes of testimony
in his first issue one time. Id. This dereliction and non-compliance with the
rules of appellate procedure forced this Court to scour the record simply to
explain aspects of the procedural and factual history because Appellant failed
adequately to do so. See Commonwealth v. Samuel, 102 A.3d 1001, 1005
(Pa. Super. 2014) (“It is not this Court’s responsibility to comb through the
record seeking the factual underpinnings of an appellant’s claim.”).

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                                    * * *

      (3) A person acts recklessly with respect to a material element of
      an offense when he consciously disregards a substantial and
      unjustifiable risk that the material element exists or will result
      from his conduct. The risk must be of such a nature and degree
      that, considering the nature and intent of the actor’s conduct and
      the circumstances known to him, its disregard involves a gross
      deviation from the standard of conduct that a reasonable person
      would observe in the actor's situation.

18 Pa.C.S § 302(b)(3); Appellant’s Brief at 36–37. “Recklessly endangering

another person is a crime ‘directed against reckless conduct entailing a serious

risk to life or limb out of proportion to any utility the conduct might have.’”

Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014) (citing

Commonwealth v. Rivera, 503 A.2d 11 (Pa. Super. 1985) (en banc)). Thus,

to support a conviction, the evidence must establish that the defendant acted

recklessly in a manner that endangered another person. 18 Pa.C.S. § 2705.

A person acts in a reckless manner when he consciously disregards a

substantial and unjustifiable risk. 18 Pa.C.S. § 302(b)(3).

      Appellant contends that the Commonwealth did not prove beyond a

reasonable doubt that Appellant consciously disregarded a substantial and

unjustifiable risk. Appellant’s Brief at 37. Appellant suggests that while he

may have exhibited poor judgment, enough to suffer employee discipline, he

did not exhibit the necessary conscious disregard of risk.          Id. (citing

Commonwealth v. Hutchins, 42 A.3d 302 (Pa. Super. 2012)).               Rather,

Appellant maintains that he merely “may not have performed according to the

best practices of the institution.” Appellant’s Brief at 38. He avers that there

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was no “showing” that any one person was in fact endangered. Id. at 39.

Appellant acknowledges that while it is illegal for an inmate to possess a shiv

in a correctional institution, this violation of the contraband rule “does not

mean the mere possession of the shiv constitutes [REAP].” Id. at 40.

       For support, Appellant relies on Commonwealth v. Kamenar, 516

A.2d 770 (Pa. Super. 1986). In that case, there was a dearth of evidence that

the defendant’s single discharge of a weapon out of the back window of her

home into a hillside placed or may have placed any other person in danger of

death or serious bodily injury; therefore, this Court determined the

defendant’s actions did not constitute REAP.       Appellant also references

Commonwealth v. Recchiuti, 2006 Pa. Dist. & Cnty. Dec. LEXIS 235 (Pa.

County Ct. Sept. 8, 2006),6 where the common pleas court determined that

the defendant’s actions of hitting his wife with a chair, resulting in her

requiring six stitches, did not constitute REAP. Neither case is determinative

of the issue before us.

       Lieutenant Silbaugh explained that search team members do not have

authority to violate prison policy by allowing inmates to exchange property,



____________________________________________


6 We note that decisions from the courts of common pleas are not binding on
the Superior Court. Barren v. Commonwealth, 74 A.3d 250, 254 n.2 (Pa.
Super. 2013) (citing Commonwealth v. Palm, 903 A.2d 1244, 1247 n.3 (Pa.
Super. 2006)).




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J-A23027-18


and permitting same while in the strip room7 violated prison policy.              N.T.,

1/24/17, at 130, 134.        Lieutenant Silbaugh had the opportunity to review

video    evidence    gathered      due   to    suspicion   that   Appellant   exhibited

unauthorized behavior resulting in the filing of the instant charges against

him. Id. at 136. Lieutenant Silbaugh observed:

        several things that were not only unusual, but were clearly
        prohibited. The presence of inmates in what would be a restricted
        portion of the visiting room behind the counter, that was not only
        a violation of policy, extremely unusual for inmates to be in that
        area, that’s a staff only area. The free flowing exchange of the
        property between the inmates that were there, that was highly
        unusual and would clearly violate policy.

                                          * * *

              It appeared as if the [electronic] items were being
        transferred from one inmate to another, an exchange of
        paperwork was completed, and the inmate who brought the
        property to the room was not being—left the room with that
        property, he had left with another inmate.

Id. at 136–137.



____________________________________________


7   Lieutenant Silbaugh testified that SCI Greene had a visiting strip room used:

        to speak with inmates confidentially, we use it to return property
        that we have confiscated from inmates during our searches and
        seizure process, we use it to—for a number of purposes, but for a
        [correction officer] to use it, it should be with the supervision and
        the direction of a manager.

N.T., 1/24/17, at 132. Lieutenant Silbaugh testified that when speaking to an
inmate in the strip room, there should be at least two staff members “and
perhaps even the supervising lieutenant.” Id. at 133. Rarely would a second
inmate be present because it “would disrupt the balance . . . That’s not a
scenario that’s conducive to a safe environment.” Id. at 134.

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      Captain Dave Mitchell was in charge of the security department at SCI

Greene and supervised Appellant, as part of the search team, for fourteen

months. N.T., 1/25/17, at 24–25. Captain Mitchell described calling a search

team meeting on September 24, 2014, at which Appellant was present. Id.

at 37–42. One of the topics that day was to inform Appellant and others that

Dan Burns, a regional deputy, had reported that officers were trading property

for intelligence, and such action must immediately cease.           Id. at 41.

Captain Mitchell also testified that there were reports that drugs were coming

into SCI Greene.     Id. at 51.      In particular, Captain Mitchell received

information from an inmate that Appellant was bringing drugs into the prison.

Id. at 65–67, 82; N.T., 1/26/17, at 7. For that reason, covert cameras were

installed in the visiting strip room by the Office of Special Investigations and

Intelligence (“OSII”) of the Department of Corrections. Id. at 51–52, 172;

N.T., 1/24/17, at 110; N.T., 1/26/17, at 7.

      Officer Raymond Heinle testified that he installed three cameras in the

visiting strip room and explained:

      They were an inch by inch box type camera that can be placed in
      small holes. . . . I would poke a hole through the false ceiling,
      place the camera on top where I could look down at a certain area
      of the room. I had even smaller ones, probably about as big as
      your thumb nail, I would place them in already existing holes of
      these tiles facing different directions inside that room.

N.T., 1/25/17, at 188–191. Officer Heinle was able to view the footage while

the cameras were filming, and he acquired video footage in the strip room

from January 23, 2015, to February 3, 2015. Id. at 191, 206. Officer Heinle

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observed Appellant with three inmates in the visiting strip room exchange a

“laundry bag of commissary, which would be food items.” Id. at 193. One of

the inmates brought it into the room, they shook hands, exchanged the bag,

and then left. Id. at 194. Appellant did not search the bag. Id. When the

inmates left the room, Officer Heinle stopped the inmate with the laundry bag,

confiscated it, and searched the inmate.          Id. at 196.    The laundry bag

contained a can of coffee in which was concealed a make-shift weapon known

as a shank. Id. The shank was confiscated as evidence, and the inmate was

removed to the restricted housing unit. Id. at 197. Officer Heinle testified

that Appellant’s failure to search the laundry bag, thereby allowing an inmate

to retain possession of the shank, placed “[t]he whole institution” in danger.

Id. at 201. The video of this exchange was played for the jury. N.T., 1/26/17,

at 39–40.

      Department of Corrections (“DOC”) Police Officer Daniel E. Meinert, the

supervisory agent of OSII, testified that he is responsible for evaluating

criminal activity on DOC property, including “inmate crimes, officer crimes,

employee    crimes,   contractor   crimes,       [and]   and   fraud   against   the

department . . . .” N.T., 1/26/17, at 4–5. Officer Meinert and forensic analyst

Christina Hingston analyzed the surveillance footage. Id. at 9.

      In addressing the sufficiency of the evidence to support the REAP

conviction, the trial court stated as follows:

           The circumstances were such that two inmates were
      brought, at the request of [Appellant], to the visiting strip room

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      which is normally not authorized for inmate use and that in a dimly
      lit room and while recorded, a laundry bag brought in by one
      inmate was then taken by another inmate. This bag contained a
      homemade weapon and was exchanged in the context of a
      meeting of inmates arranged by [Appellant]. The [c]ourt believes
      that under these particular circumstances the Recklessly
      Endangering charge was wholly warranted.

             The [c]ourt believes that under these circumstances that the
      failure to search was reckless and was a substantial disregard for
      a known risk.

            The [c]ourt is not swayed by the argument of the Defense
      that a weapon which was already in the institution, but then
      transferred to another inmate, did not make the prison any more
      or less dangerous.

             The [c]ourt though did deem the failure to search where a
      weapon was ultimately discovered to be a serious offense and
      reckless conduct on the part of [Appellant], particularly given the
      fact that the homemade “shank” was found immediately after the
      inmate exchange.

Post Sentence Motion Opinion and Order, 7/20/17, at unnumbered 13–14.

      We agree with the trial court that Appellant acted recklessly in failing to

examine the contents of the laundry bag containing the shank that was

exchanged by two inmates, and that such failure may have placed another

person in danger of death or serious bodily injury. Appellant’s claim that there

was no showing that any one person was in fact endangered, Appellant’s Brief

at 39, is of no moment because the statute does not require it. 18 Pa.C.S.

§ 2705 (“A person commits a misdemeanor of the second degree if he

recklessly engages in conduct which places or may place another person in

danger of death or serious bodily injury.”) (emphasis added). As established

by the testimony presented at trial, Appellant knew, as did all corrections

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officers, especially those officers on the search team, that multiple inmates

were not permitted in the strip room, inmates were not permitted to transfer

property to another inmate, all bags must be examined by an officer, and that

possession of a shank, or any item that can be used as a weapon, places all

officers and all inmates at risk. We agree that the Commonwealth presented

sufficient evidence of REAP.

      In his second issue, Appellant argues there was insufficient evidence to

convict him of unlawful use of computer and other computer crimes, 18

Pa.C.S. § 7611(a). The statute provides as follows:

      (a) Offense defined.--A person commits the offense of unlawful
      use of a computer if he:

            (1) accesses or exceeds authorization to access,
            alters, damages or destroys any computer, computer
            system, computer network, computer software,
            computer program, computer database, World Wide
            Web site or telecommunication device or any part
            thereof with the intent to interrupt the normal
            functioning of a person or to devise or execute any
            scheme or artifice to defraud or deceive or control
            property or services by means of false or fraudulent
            pretenses, representations or promises;

            (2) intentionally and without authorization accesses
            or exceeds authorization to access, alters, interferes
            with the operation of, damages or destroys any
            computer, computer system, computer network,
            computer software, computer program, computer
            database, World Wide Web site or telecommunication
            device or any part thereof;

            (3)    intentionally or  knowingly      and  without
            authorization gives or publishes a password,
            identifying code, personal identification number or
            other confidential information about a computer,

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J-A23027-18


              computer system, computer network, computer
              database, World Wide Web site or telecommunication
              device.

       Appellant suggests that the Information alleged only that Appellant

accessed the computer data base without authorization, and he contends,

“Although     the    introductory      paragraph   of   the   Information   quotes

Section 7611(a)(2), the ‘to wit’ clause appears to be an allegation of a crime

under Section 7611(a)(1).”8 Appellant’s Brief at 45. “[The Information] did

not allege that [Appellant] exceeded his authorization to access. He did not

enter any folders, files, software, or system parts that were beyond what his

issued IT staff Department of Corrections password allowed.” Id. (emphasis

omitted).     Appellant thus avers: that he was authorized to access the

computer system and had his own password for that purpose; there is nothing

in the record to show that Appellant did anything to exceed his authority to

access a level where he was not permitted; and there was no evidence

presented that Appellant used a computer, its systems, or database “to

actually look up inmate numbers to facilitate the scheme of unauthorized sale

or transfer of property.” Appellant’s Brief at 47–48 (emphasis omitted). In


____________________________________________


8 The trial court instructed the jury, inter alia, that to find Appellant guilty of
18 Pa.C.S. § 7611 it must find that Appellant “accessed or exceeded
authorization to access all or any part of any computer or computer
system . . . to look up inmate numbers to facilitate the scheme of
unauthorized . . . transfer of property.” N.T., 1/27/17, at 123. Appellant does
not assert that the trial court improperly or incorrectly charged the jury.



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essence, Appellant’s argument is that because there was no testimony or

video evidence presented that Appellant exceeded his authorization to access

the computer system, there was insufficient evidence that he committed

unlawful use of the DOC computer. Appellant’s Brief at 48.9

       In making his argument on this issue, Appellant emphasizes the

language in 18 Pa.C.S. § 7611(a) that states a person commits the offense if

he “exceeds authorization” to access any computer or computer system.

Appellant’s Brief at 43. He ignores, however, that the statute also states in

the disjunctive that a person commits the crime if he “accesses” such

computer system. 18 Pa.C.S. § 7611(a)(1). While Appellant may not have

exceeded the level of access to the prison’s database, ample testimony

established that his authorization to do so did not include allowing inmates to

view the database.

       SCI Greene Superintendent Gilmore testified at length regarding the

extent of Appellant’s authorization, as a corrections officer, regarding the

prison’s computer network.            N.T., 1/24/17, at 57–66, 74–76, 92–93.

Lieutenant Silbaugh testified that permitting inmates to “see the computer

screen not for inmate use” is a violation of prison policy. Id. at 138. The

lieutenant also testified to the warning that appeared on all computer screens

that stated use of the computer “is an activity . . . for authorized use only.


____________________________________________


9 We note that the trial court failed to address this issue specifically, and the
Commonwealth’s responsive brief merely is conclusory on this issue.

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Unauthorized access is prohibited.”        Id. at 168.     Lieutenant Silbaugh

confirmed that he did not authorize Appellant to “look up confidential

information pertaining to inmates” on the computer system. Id. at 169.

      While displaying the video shown to the jury, Officer Meinert testified

that it showed Appellant logging on to the restricted computer in the strip

room on January 29, 2015. N.T., 1/26/18, at 20. Two inmates entered the

strip room, and one inmate pointed to the computer screen where his financial

records appeared. Id. at 22. The second inmate began to view the computer

screen as well for several minutes. Id. at 23. A third inmate then entered

the strip room. Id.

      Video from February 3, 2015, once again showed Appellant at the

computer whereupon two inmates entered the strip room. N.T., 1/26/18, at

40. One of the inmates leaned over to observe the computer screen while

speaking to Appellant. Id. Officer Meinert’s report indicated that Appellant

admitted to allowing inmates’ presence and access to the computer in the strip

room without authorization. Id. at 43–44.

      The     extensive   testimony   established   that   Appellant   accessed

information on the prison computer system and utilized the SCI Greene

database and its confidential information for a purpose for which he was not

authorized.    18 Pa.C.S. § 7611(a).      This case is substantially similar to

Commonwealth v. McFadden, 850 A.2d 1290 (Pa. Super. 2004), where a




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police officer assailed her conviction of unlawful use of a computer.10 There,

this Court observed that while the officer was authorized to access her police

computer system “for purposes of official police business, she was not

authorized to access the computer for any other purposes.” Id. at 1293. We

concluded the appellant’s use of the computer to send an email suggesting

her police vehicle was contaminated by anthrax was not an authorized use.

Id.   We found such evidence to be sufficient to support her conviction of

unauthorized use of a computer.            Similarly, herein, Appellant’s use of the

computer to view inmate records and to permit inmates to view such records,

of their own or belonging to other inmates, constituted a use of SCI Greene’s

computer system for which Appellant was not authorized. Thus, we reject

Appellant’s second issue.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/4/2018




____________________________________________


10 The appellant in McFadden was convicted of 18 Pa.C.S. § 3933, unlawful
use of a computer, which was repealed by 2002, Dec. 16, P.L.1953, No. 226,
§ 12, and replaced by 18 Pa.C.S. § 7611.

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