J-A21003-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 W. W.                                   :
                                         :
                   Appellant             :   No. 384 EDA 2018

              Appeal from the Order Entered January 17, 2018
              In the Court of Common Pleas of Monroe County
            Criminal Division at No(s): CP-45-CR-0001302-2017


BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J.

MEMORANDUM BY PANELLA, J.                          FILED MARCH 28, 2019

      Appellant, W.W., seeks review of the order denying his pretrial motion

to dismiss based on the compulsory joinder rule and double jeopardy. In a

previous proceeding, Appellant pled guilty to charges arising from his sexual

assault of a minor. He now seeks to preclude prosecution on charges arising

from child pornography found on the computer seized from him during the

prosecution of the sexual assault case. After careful review, we reverse as to

the counts of child pornography relating to two of the videos found on

Appellant’s computer; we affirm as to all other counts, including the 126

remaining counts of child pornography.

      On December 23, 2013, the Pennsylvania State Police (“PSP”) began an

investigation into a sexual assault perpetrated by Appellant against a twelve-
J-A21003-18



year-old victim (“the Victim”).1 Affidavit of Probable Cause, 3/20/17, at ¶ 3.

The Victim was interviewed at the Scranton Children’s Advocacy Center, where

she disclosed she was sexually assaulted by Appellant multiple times between

November 2011 and August 2013.                 See id.   According to the affidavit of

probable cause in the current action, “[the Victim] disclosed that this began

when [Appellant] showed her a video of an older male having sex with a young

girl. She related it was ‘Kiddie Porn.’ . . . She related that it may have been

contained on a flash drive which he had inserted into the computer.” Id.

       The PSP obtained and executed a search warrant for Appellant’s

computer. “On at least four occasions over the next year, from November

2014 to August 2015,” the trooper in charge of the investigation “checked

with the computer lab but the results of the analysis on [Appellant]’s laptop

were still pending.” Trial Court Opinion, 1/17/18, at 3.

       Following [Appellant]’s sentencing for Indecent Assault [of
       another minor victim] on a separate case,[2] and prior to his
       transfer to state prison, he was interviewed by [PSP Corporal
       Bruce] Wesnak at the Monroe County Correctional Facility on
       December 16, 2015. In that interview, [Appellant] allegedly
       admitted to having sexual contact with [the Victim] but denied
       showing her any pornography or having any child pornography on
       his computer.
____________________________________________


1 All facts relating to the sexual assault of the Victim are taken from the
affidavit of probable cause in the current matter, docket number CP-45-CR-
0001302-2017, unless otherwise noted. Nothing from the record for docket
number CP-45-CR-0000294-2016, including the notes of testimony from
Appellant’s guilty plea hearing, is included in the certified record for the
current matter, docket number CP-45-CR-0001302-2017.
2   Docket Number CP-45-CR-0002499-2013.


                                           -2-
J-A21003-18



Id.

       On April 6, 2016, at docket number CP-45-CR-0000294-2016 (“No. 294-

16”), Appellant pleaded guilty to involuntary deviate sexual intercourse with

a person less than sixteen years of age based upon his assault of the Victim.

Pursuant to a plea agreement, the Commonwealth nolle prossed eight

additional charges, none of which were child pornography or criminal use of a

communication facility. On October 31, 2016, the trial court sentenced

Appellant to ten to twenty years of confinement. Appellant did not file a direct

appeal.

       Shortly thereafter, the PSP finished its search of Appellant’s computer

and discovered 128 images of child pornography. Two of those images were

videos of a male adult having intercourse with a female child, who was

approximately eight or nine years old.

       On March 16, 2017, the PSP filed a criminal complaint against Appellant

at docket number CP-45-CR-0001302-2017 (“No. 1302-17”) charging 128

counts of child pornography and one count of criminal use of a communication

facility.

       Appellant filed an omnibus pretrial motion at No. 1302-17, which

included a motion to dismiss.3          Appellant’s motion to dismiss alleged the

____________________________________________


3 Appellant’s omnibus pretrial motion also included a motion to enforce his
plea agreement at No. 294-16, which was likewise denied by the trial court on
January 17, 2018. Appellant’s motion to enforce his plea agreement pleaded
that “Due Process under both the Federal and Pennsylvania Constitutions”



                                           -3-
J-A21003-18



charges at No. 1302-17 were barred on double jeopardy grounds and pursuant

to the compulsory joinder rule, 18 Pa.C.S.A. § 110.

       At the hearing on Appellant’s motion, Corporal Wesnak averred, “[the

Victim] indicated that [Appellant] showed her a video of an older male having

sex with a young girl.” N.T. Hearing, 8/21/2017, at 20 (emphasis added).

Later in his testimony, after Corporal Wesnak reviewed the Victim’s written

statement, the following exchange occurred:

       Q.     Okay. And do you see where it says a few lines down that
              she says that [Appellant] showed her videos?

       A.     Yes.

       Q.     Okay. And she is referring to child pornography; is that
              correct?

       A.     It says, “showed me videos of fathers [and] daughters
              doing it.”

N.T., 8/21/2017, at 25 (emphasis added).

       The trial court subsequently entered an order denying the motion to

dismiss. Order, 1/17/2018. One day later, Appellant filed a motion requesting

that the trial court “enter an order finding that his Double Jeopardy issue is

non-frivolous and immediately appealable as a collateral order” pursuant to

____________________________________________


required him “to receive the benefit of his plea agreement.” Omnibus Motion,
7/17/2017, at ¶ 36. Appellant’s motion to enforce his plea agreement made
no reference to double jeopardy. See id. at ¶¶ 35-40.

In his brief to this Court, Appellant makes no mention of his motion to enforce
his plea agreement and does not raise any due process claims.
Consequently, we conclude that Appellant has chosen not to pursue any
appeal related to this motion to enforce the plea agreement.


                                           -4-
J-A21003-18



Pa.R.Crim.P. 587. Pa.R.Crim.P. 587(B)(4) states: “In a case in which the

judge denies the motion [to dismiss on double jeopardy grounds], the findings

of fact shall include a specific finding as to frivolousness.” The trial court’s

order had not included any findings as to frivolousness.

      The trial court entered an order finding his motion to dismiss non-

frivolous and immediately appealable. Appellant then filed this timely

interlocutory appeal.

      Appellant presents the following issue for our review:

      Whether the [t]rial [c]ourt erred when it failed to bar prosecution
      under the Compulsory Joinder Statute (18 Pa.C.S.A. § 110) and
      the Double Jeopardy Clauses in a subsequent prosecution for Child
      Pornography, despite the fact that the former prosecution for
      sexual assaults:

         a. resulted in a guilty plea and jail sentence;

         b. alleged the instant child pornography was possessed and
         shown in the sexual assaults;

         c. where a warrant for the child pornography, based upon
         probable cause, was sought and obtained at the beginning
         of the former prosecution; and

         d. where these charges were filed, after sentencing on the
         first case, when the Commonwealth neglected to execute
         that warrant for over two (2) years after the warrant was
         issued?

Appellant’s Brief, at 4.

      As an initial matter, we address our jurisdiction over this appeal. See

Commonwealth v. Tchirkow, 160 A.3d 798, 803 (Pa. Super. 2017) (holding

this Court has the ability to review questions of jurisdiction sua sponte). “The

denial of a pretrial motion to dismiss an indictment on double jeopardy


                                     -5-
J-A21003-18



grounds is subject to appellate review unless it appears that the claim is

frivolous.” Commonwealth v. Miller, 198 A.3d 1187, 1190 n.1 (Pa. Super.

2018) (citation omitted). Here, the trial court determined Appellant’s double

jeopardy claim non-frivolous. We therefore possess appellate jurisdiction over

this appeal.

      We turn to the merits of Appellant’s challenge. While Appellant explicitly

presents only a single issue, he cites to two related, but technically

independent, bases of relief. First, he contends the current prosecution

violates the prohibition against double jeopardy.

      The prohibition against double jeopardy was designed to protect
      individuals from being tried or punished more than once for the
      same allegation or offense. The Fifth Amendment of the United
      States Constitution provides, in relevant part, that no person shall
      “be subject for the same offence to be twice put in jeopardy of life
      or limb.” Likewise, Article I, § 10 of the Pennsylvania Constitution
      provides that “No person shall, for the same offense, be twice put
      in jeopardy of life or limb.” . . .

Id., at 1191 (citations omitted). “The double jeopardy protections afforded

by the United States and Pennsylvania Constitutions are coextensive and

prohibit successive prosecutions and multiple punishments for the same

offense.” Commonwealth v. Barber, 940 A.2d 369, 377 (Pa. Super. 2007)

(citation omitted).

      Appellant blends his double jeopardy argument with an argument that

the current prosecution is barred by the compulsory joinder rule, 18 Pa.C.S.A.

§ 110. However, “[t]hough similar, the Double Jeopardy Clause and the

compulsory joinder rule are not coterminous.” Commonwealth v. Perfetto,

                                     -6-
J-A21003-18



169 A.3d 1114, 1118 n.4 (Pa. Super. 2017) (en banc) (citations omitted),

appeal granted on other grounds, 182 A.3d 435 (Pa. 2018). “While in many

respects section 110 and the double jeopardy clause serve the same ends,

nevertheless, the two provisions are not one and the same.” Commonwealth

v. Johnson, 466 A.2d 636, 639 (Pa. Super. 1983).

     Double jeopardy protections, constitutional in nature, require that any

waiver be knowing and intelligent. See id., at 640. In contrast, to waive the

protections provided by section 110, the decision to waive must only be

voluntary. See id.

     Additionally, the provisions differ in their scope. Double jeopardy

protections arise when the same sovereign seeks to re-prosecute the same

person for the same act. See id. Section 110 provides, in certain

circumstances, against a subsequent prosecution based upon “the same

conduct or arising from the same criminal episode” for which the defendant

has already been tried. Id.

     Here, Appellant offers no argument pursuant to the double jeopardy

clause distinct from his argument under § 110. See Appellant’s Brief at 18-

39. Further, there is no argument Appellant waived either his double jeopardy

or section 110 rights. Thus, if Appellant’s arguments under § 110 fail, his

double jeopardy claims must also fail. We therefore proceed to determine

whether Appellant is entitled to protection under section 110.




                                    -7-
J-A21003-18



      “Our review is plenary when the issue is whether the compulsory joinder

rule, 18 Pa.C.S.A. § 110, bars cases.” Commonwealth v. M.D.P., 831 A.2d

714, 717 (Pa. Super. 2003) (citation omitted).

      According to the compulsory joinder rule:

      Although a prosecution is for a violation of a different provision of
      the statutes than a former prosecution or is based on different
      facts, it is barred by such former prosecution under the following
      circumstances:

         (1) The former prosecution resulted in an acquittal or 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 for:

            (i) any offense of which the defendant could have
            been convicted on the first prosecution;

            (ii) any offense based on the same conduct or arising
            from the same criminal episode, if such offense was
            known to the appropriate prosecuting officer at the
            time of the commencement of the first trial and
            occurred within the same judicial district as the former
            prosecution unless the court ordered a separate trial
            of the charge of such offense.

18 Pa.C.S.A. § 110(1).

      With regard to Section 110 of the Pennsylvania Crimes Code, the
      policies served by the statute are two-fold: to protect accused
      persons from governmental harassment of undergoing successive
      trials for offenses stemming from the same episode, and to
      promote judicial economy and finality by avoiding repetitious
      litigation.

Miller, 198 A.3d at 1191 (citation omitted).

      Appellant first contends the current charges should be barred under

section 110(1)(i), because he “could have been convicted of the offense in the



                                      -8-
J-A21003-18



first prosecution.” Appellant’s Brief at 29. Appellant was charged with 128

counts of child pornography pursuant to 18 Pa.C.S.A. § 6312(d)(1):

       Any 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.

Id. (emphasis added).4

       According to the evidence available at the time of the first prosecution,

the Victim viewed at least two videos of an adult male having intercourse with

a female child. See N.T., Hearing, 8/21/2017, at 25 (“showed me videos of

fathers and daughters doing it”). Thus, based on the Victim’s testimony, the

Commonwealth could have established the two counts of child pornography

related to the two videos depicting a male adult having intercourse with a

female child.

       The Commonwealth contends, under the best evidence rule, it could not

have prosecuted Appellant for child pornography until it obtained the videos.

The best evidence rule requires a proponent to present an original recording

in order to prove the nature of its contents. See Pa.R.E. 1002. However, this

requirement is inapplicable where the opposing party has control of the

original and fails to present it when given a fair opportunity to rebut other

____________________________________________


4 Although parts of 18 Pa.C.S.A. § 6312 have been revised by the legislature
since the time that Appellant showed the victim the pornographic material,
between November 2011 and August 2013, see Affidavit of Probable Cause,
3/17/2017, at 1 ¶ 2, the language of subsection (d)(1) has remained
unaltered.

                                           -9-
J-A21003-18



evidence of its contents at trial. See Pa.R.E. 1004. Thus, if Appellant had not

produced the videos that were allegedly in his possession, the Commonwealth

would have been excused from compliance with the best evidence rule.

      Additionally,   the   Commonwealth      had   already   seized   Appellant’s

computer. Due to an apparent backlog at the forensic testing laboratory, the

Commonwealth did not receive a report on the contents of the computer until

after Appellant pled guilty in the first prosecution. This chronology, according

the Commonwealth, absolved it of any duty to comply with the compulsory

joinder rule.

      However, the Commonwealth was not precluded from seeking a

continuance of the guilty plea in order to comply with its duties under the

compulsory joinder rule. See Commonwealth v. Lohr, 418 A.2d 688, 690-

691 (Pa. Super. 1980). If the Commonwealth had made a showing of due

diligence in obtaining the videos themselves, the delay imposed by the

continuance would have been excludable time under Rule 600. See id.; see

also Pa.R.Crim.P. 600(C)(1).

      The Commonwealth has charged Appellant of violating 18 Pa.C.S.A. §

6312 (d)(1) based on his “knowing[] possession or control[]” of these two

videos. Criminal Complaint, 3/20/17 at 1. To obtain a conviction under section

6312(d)(1), the Commonwealth need not establish the defendant possessed

the child pornography. See Commonwealth v. Diodoro, 970 A.2d 1100,

1107 (Pa. 2009). Rather, the Commonwealth need only establish that the

defendant knowingly controlled child pornography. See id., at 1106-1107. As

                                     - 10 -
J-A21003-18



a result, a defendant can be convicted of violating § 6312(d) if he “access[ed]

and view[ed] child pornography over the internet” even if he never possesses

the child pornography. See id., at 1108.

      Under Diodoro, the Commonwealth could have convicted Appellant on

these two charges based purely on the Victim’s statements that he showed

these videos to her. As a result, pursuant to section 110(1)(i), we reverse the

trial court’s order denying the motion to dismiss as to the two counts of child

pornography relating to these two videos only.

      In contrast, the Commonwealth did not have evidence of any other

pornographic images in Appellant’s possession or control when it prosecuted

him for sexual assault. Therefore, Appellant has not established the

Commonwealth was capable of convicting him on the remaining 126 charges

of possessing or controlling child pornography. The Commonwealth was not

required to join these charges with his first prosecution under section

110(1)(i).

      Appellant next argues the current matter should be barred in its

entirety, because “it meets the same criminal episode test, along with its other

elements” pursuant to 18 Pa.C.S.A. § 110(1)(ii). Appellant’s Brief at 30. The

requirements of section 110(1)(ii) have been summarized as follows:

      Under Section 110, the Commonwealth is prohibited from
      prosecuting a defendant based on its former prosecution of the
      defendant if the following four-part test is met:

      (1) the former prosecution resulted in an acquittal or a conviction;
      (2) the current prosecution must be based on the same criminal
      conduct or have arisen from the same criminal episode as the

                                     - 11 -
J-A21003-18


      former prosecution; (3) the prosecutor must have been aware of
      the current charges before the commencement of the trial for the
      former charges; and (4) the current charges and the former
      charges must be within the jurisdiction of a single court.

Commonwealth v. Shull, 811 A.2d 1, 4 (Pa. Super. 2002) (citation omitted).

      Here, the Commonwealth does not dispute the first and fourth prongs

of the above test have been met. See Commonwealth’s Brief at 7-8; see also

Trial Court Opinion, filed Jan. 17, 2018, at 8 (trial court agrees that first and

fourth prongs are satisfied).

      Appellant maintains “[t]he second prong is met because this was a

single criminal episode considering all the facts and circumstances.”

Appellant’s Brief at 36 (emphasis omitted). We disagree.

      To determine whether various acts constitute a single criminal
      episode warranting compulsory joinder, a court must consider two
      factors: 1) the logical relationship between the acts; and 2) the
      temporal relationship between the acts.3 In ascertaining whether
      a number of statutory offenses are “logically related” to one
      another, the court should initially inquire as to whether there is a
      substantial duplication of factual, and/or legal issues presented by
      the offenses.
         3 The single criminal episode analysis essentially considers
         the totality of the circumstances. Here, . . . since we
         determine that the logical relationship is insufficient to
         constitute a single criminal episode, the purpose of the rule
         is satisfied and we do not address the temporal relationship.

M.D.P., 831 A.2d at 718–19 (internal citations omitted).

      Based on our review of the certified record, we conclude the trial court

did not err in denying Appellant’s pretrial motion to dismiss the remaining 126

counts. Appellant’s guilty plea at No. 294-16 stems from the sexual assault

of the Victim. See Trial Court Opinion, filed 1/17/18, at 3. In the current


                                     - 12 -
J-A21003-18



action, however, the Commonwealth seeks to prosecute Appellant for the

images of child pornography discovered on his computer.          See Affidavit of

Probable Cause, 3/17/2017, at 2 ¶¶ 6-7; Trial Court Opinion, filed 1/17/18,

at 4. The trial court opinion comprehensively discusses and disposes of the

question of whether there was a logical relationship between the acts, as

follows:

      [No. 294-16 and No. 1302-17] involve proof of different elements
      for each offense, different victims, and different witnesses and
      experts. The only similarities between the two offenses is that
      [the Victim’s] interview with police led to the allegation that
      [Appellant] may have possessed the child pornography and that
      [Corporal] Wesnak investigated both crimes. Once police were
      alerted that [Appellant] may have . . . child pornography, [PSP]
      opened a separate investigation into the allegations which
      included obtaining [a] search warrant for [Appellant]’s laptop and
      having it analyzed by another party unrelated to the investigation
      into the sexual assault of [the Victim]. Furthermore, the crimes
      involved separate victims. While [the Victim] was the sole victim
      of the sexual assaults in the first case, the child pornography
      charges in the instant case involved different underage girls . . .
      There was no indication that [the Victim] was depicted in any of
      the videos or images of child pornography found on [Appellant]’s
      laptop. For these reasons, we find that there is no logical
      relationship between the instant prosecution and the first case.

Trial Court Opinion, filed 1/17/18, at 8-9. We agree with the trial court that

the remaining 126 charges are not based upon the same criminal episode as

that upon which Appellant was convicted at No. 294-16.

      Since the trial court correctly concluded that the logical relationship is

insufficient to constitute a single criminal episode, “the purpose of the rule is

satisfied and we do not address the temporal relationship.” M.D.P., 831 A.2d

at 719 n.4. Additionally, as Appellant has failed to fulfill one prong of the four-


                                      - 13 -
J-A21003-18



part test to satisfy section 110(1)(ii), see Shull, 811 A.2d at 4, his entire

challenge pursuant to that subsection fails, and we need not address the

remaining third prong.5        Accordingly, based on the record before us, we

conclude the trial court appropriately denied Appellant’s motion to dismiss as

to all remaining counts.6

       In conclusion, we reverse in part and affirm in part. We reverse on the

two counts of child pornography based upon the two of videos of a male adult

having intercourse with a female child, as described in Paragraphs 7(1) and

7(3) of the affidavit of probable cause. We affirm as to the remaining 126

counts of child pornography and the one count of criminal use of a

communication facility.

       Order affirmed in part and reversed in part.

       Judge Olson and Judge McLaughlin concur in the result.




____________________________________________


5 Even if we were to consider this third prong – i.e., “the prosecutor must have
been aware of the current charges before the commencement of the trial for
the former charges,” Shull, 811 A.2d at 4 – we conclude that this prong has
also not been established, as police and therefore the prosecution were not
aware that any child pornography existed on Appellant’s computer at the time
he pleaded guilty at No. 294-16, Trial Court Opinion, filed Jan. 17, 2018, at 3,
9.
6 We note our decision is based upon the representations of the parties as to
what evidence the Commonwealth intends to present if the instant action goes
to trial.


                                          - 14 -
J-A21003-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/19




                          - 15 -
