J. S08022/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                      v.                  :
                                          :
CLINTON REED KUHLMAN,                     :          No. 753 WDA 2016
                                          :
                           Appellant      :


             Appeal from the Judgment of Sentence, February 25, 2016,
                  in the Court of Common Pleas of Beaver County
                 Criminal Division at No. CP-04-CR-0001026-2014


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND SOLANO, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED MARCH 17, 2017

        Clinton Reed Kuhlman appeals the judgment of sentence in which the

Court of Common Pleas of Beaver County sentenced him to serve an

aggregate sentence of one year less one day to two years less one day of

imprisonment in the Beaver County Jail plus fifteen years’ probation for

five counts of distribution of child pornography, ten counts of possession of

child pornography, and one count of criminal use of a communications

facility.1

        The pertinent facts and testimony, as recounted by the trial court, are

as follows:

                     Dwayne Tabak is employed as a Special Agent
               with the Pennsylvania Office of Attorney General with
               the child predator section. He testified as follows:

1
    18 Pa.C.S.A. §§ 6312(c), 6312(d), and 7512(a), respectively.
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                 On March 18, 2014 Agent Tabak received a
          referral from a detective in the Allegheny County
          District Attorney’s Office regarding an internet child
          pornography investigation; the case was referred
          because the target of the investigation resided
          outside of Allegheny County.           The information
          received from Allegheny County included a report
          from the National Center for Missing and Exploited
          Children, which identified an IP Address that was
          used to upload images of child pornography to a
          website named “Tinypic” on January 11 and 12,
          2014. The detective from Allegheny County had
          determined that the specified IP Address was owned
          by the internet service provider Comcast and then
          obtained a Court Order requiring Comcast to provide
          information as to the subscriber to whom the
          IP Address was assigned; Comcast identified
          [appellant] as the subscriber. Agent Tabak made
          efforts to learn the identities of all persons residing
          at [appellant’s] address and then obtained a search
          warrant, which was executed on May 28, 2014.

                 When the search warrant was executed
          [appellant], his mother and his father were present
          at the residence. Agent Tabak provided [appellant]
          a form titled “Advice of Rights and Waiver of Rights”,
          setting forth [appellant’s] rights under Miranda [v.
          Arizona, 384 U.S. 436 (1966)], which [appellant]
          reviewed and signed. Agent Tabak then spoke with
          [appellant], who acknowledged that he lived in the
          residence with his parents and he subscribed to
          Comcast as an internet service provider. [Appellant]
          further acknowledged that he owned and was the
          sole user of the computer located in the basement
          and that he used a “Yahoo” account named
          “clintster_38”.

                 As Agent Tabak was speaking with [appellant,]
          other law enforcement personnel were conducting a
          preliminary review of the computers in the home and
          found child pornography in the computer [appellant]
          admitted belonged to him; these officers retrieved
          thirty (30) photographs from the computer, including


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          certain images that had been posted to “Tinypic”
          from [appellant’s] IP Address. [Appellant] was then
          arrested and transported to the Rochester Police
          Station. At the police station [appellant] was shown
          the pictures uploaded to “Tinypic” from his
          IP Address and he acknowledged that he had
          previously viewed such photographs on his
          computer.

                 Agent Tabak testified that sixteen (16) images
          of child pornography had been posted to “Tinypic”
          from [appellant’s] IP Address and he decided to
          charge [appellant] with five (5) counts of Distribution
          of Child Pornography; he further testified that of the
          thirty (30) images of child pornography he had been
          provided from [appellant’s] computer during the
          initial forensic review, he decided to charge
          [appellant] with ten (10) counts of Possession of
          Child Pornography.

                 Timothy   Haney     is  employed    by   the
          Pennsylvania Office of Attorney General as a Special
          Agent and Computer Forensic Examiner. He testified
          as follows:

                Agent Haney assisted in the execution of the
          search warrant at [appellant’s] residence on May 28,
          2014. On this date he performed a preliminary
          investigation of a desktop computer and internal
          hard drive and created a “Preview Report”. During
          his examination of the hard drive he discovered
          more than 250 images of child pornography; all of
          the files were found in a photo sharing folder
          associated with “Yahoo” accounts with the profile
          names “clintster_38” and “cool_3822”. During his
          examination of the desktop computer he again found
          more than 250 images of child pornography in a
          photo sharing folder associated with the same
          “Yahoo” accounts. Agent Haney explained that these
          images existing in the “Yahoo” photo sharing folder
          indicated that such images had been shared (sent or
          received) in a “Yahoo Messenger” chat.




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                John O’Brien is employed as a Supervisory
          Special Agent with the Pennsylvania Office of
          Attorney General, Bureau of Special Investigations,
          Computer Forensics Unit. He testified as follows:

                Agent O’Brien examined four devices related to
          this case, an internal hard drive from a computer, a
          thumb driver (or USB drive), a desktop computer
          system and an [sic] USB connected external hard
          drive. He determined that three of the devices, the
          internal hard drive, the desktop computer and the
          USB external hard drive, had accessed the internet,
          or were connected to a system that had accessed the
          internet, via the previously specified IP Address
          (assigned to [appellant] by Comcast) over one
          thousand times.      Agent O’Brien discovered over
          300 files containing child pornography on the internal
          hard drive; he discovered 236 images of child
          pornography in a “Yahoo” photo sharing folder. He
          discovered that the hard drive contained a program
          named “ARIES[,”] which provided access to a
          network providing users the ability to search for and
          download files; review of this program’s download
          history indicated that over 1,400 files had been
          downloaded with file names that were indicative of
          child pornography. Agent O’Brien further discovered
          that the hard drive’s internet search history revealed
          searches made through “Yahoo” for “nude preteen
          girls” and numerous similar terms.            He also
          discovered transcripts of chats made through a
          “Yahoo” program; these chats involved conversations
          between “cool_3822” and various other users
          regarding explicit sexual activity with children.
          These transcripts also indicated that the user
          “cool_3822” had shared child pornography with other
          chat participants.

                 Agent O’Brien found similar evidence on the
          desktop computer he examined. The “user profile”
          of the Windows operating system installed on the
          desktop computer was named “Clint” and the
          operating system was registered to “Clint Kuhlman”.
          Also the “desktop” of the Windows operating system
          (i.e., the screen shown when a user accesses the


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            computer) contained a folder named “New NN”,
            which contained 91 images of child pornography.

                   [Appellant] acknowledge[d] participating in
            chats with the Yahoo username “cool_3822” and that
            certain chats included the topic of sexual relations
            with children. [Appellant] denied ever intentionally
            or    knowingly    viewing   or   distributing   child
            pornography and further averred that his statements
            to Agent Tabak were coerced by Agent Tabak’s
            threat to have [appellant’s] nieces tested for sexual
            assault, allegations which Agent Tabak denied. The
            Court observes that [appellant] and his Counsel
            stipulated that photographs pertaining to offenses
            charged in Counts 1 through 15 were child
            pornography.

Trial court opinion, 6/16/16 at 2-7 (footnotes omitted).

      Following trial, a jury convicted appellant of the charges for which he

was sentenced.    Appellant filed post-sentence motions that the trial court

denied on April 22, 2016.      Appellant timely appealed to this court.    On

May 20, 2016, the trial court ordered appellant to file a concise statement of

errors complained of on appeal in accordance with Pa.R.A.P. 1925(b).

Appellant complied on June 8, 2016.

      Appellant contends that his convictions should be reversed because

the verdict was against the weight of the evidence presented.

                  [T]he weight of the evidence is
                  exclusively for the finder of fact who is
                  free to believe all, part, or none of the
                  evidence and to determine the credibility
                  of the witnesses.       An appellate court
                  cannot substitute its judgment for that of
                  the finder of fact . . . thus, we may only
                  reverse the lower court’s verdict if it is so
                  contrary to the evidence as to shock


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                  one’s sense of justice. Moreover, where
                  the trial court has ruled on the weight
                  claim below, an appellate court’s role is
                  not to consider the underlying question
                  of whether the verdict is against the
                  weight of the evidence, . . . rather,
                  appellate review is limited to whether the
                  trial court palpably abused its discretion
                  in ruling on the weight claim.

            Commonwealth v. Kim, 888 A.2d 847, 851
            (Pa.Super. 2005) (citations and quotations omitted).
            A motion for a new trial based on a challenge to the
            weight of the evidence concedes the evidence was
            sufficient to support the verdict. Commonwealth v.
            Davis, 799 A.2d 860, 865 (Pa.Super. 2002).

Commonwealth v. Jarowecki, 923 A.2d 425, 433 (Pa.Super. 2007).

      Appellant argues that the trial court abused its discretion when it

determined that the verdicts were not against the weight of the evidence in

light of appellant’s testimony that he was the owner of the computer and the

Yahoo usernames, but that he had not knowingly or intentionally requested

or shared any files regarding child pornography. While appellant admits that

he engaged in chatrooms where discussions of child pornography took place,

he asserts that he just received photos and/or videos from other members

of the chatroom and clicked on them inadvertently. Further, Agent Timothy

Haney stated that files of child pornography were present in the Yahoo photo

sharing folder but could not say that the files were intentionally distributed

to other users.

      The child pornography offenses for which appellant was convicted are

set forth as follows:


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           (c)   Dissemination          of        photographs,
                 videotapes, computer depictions and
                 films.--Any person who knowingly sells,
                 distributes, delivers, disseminates, transfers,
                 displays or exhibits to others, or who
                 possesses for the purpose of sale, distribution,
                 delivery, dissemination, transfer, display or
                 exhibition to others, 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.

           (d)    Child    pornography.--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

18 Pa.C.S.A. § 6312(c-d).

     With respect to this weight claim, the trial court reasoned:

           The    Commonwealth         presented     overwhelming
           evidence, as set forth above, that the computer and
           related electronic devices located in [appellant’s]
           bedroom were used to possess and distribute child
           pornography.      Further, a substantial amount of
           circumstantial evidence (including, but not limited to,
           the computer’s location in the home, the fact that
           the only other residents of the home were
           [appellant’s] elderly parents, and [appellant’s]
           admissions that he was the sole user of the
           computer and that he engaged in internet chats
           regarding the sexual abuse of children) proved that
           [appellant] was the individual operating the
           computer     to    possess     and    distribute  child
           pornography and that he knowingly did so. . . . The
           jury, acting as the fact-finder, was free to disbelieve



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            [appellant’s] self-serving testimony that he did not
            knowingly possess or distribute child pornography.

Trial court opinion, 6/16/16 at 10-11.

      Here, appellant admitted that he was the owner and sole user of the

computer at his residence. (Notes of testimony, 11/10/15 at 117-118.) The

National Center for Missing and Exploited Children identified an Internet

Protocol Address that had been used to upload child pornography images to

a website known as Tinypic on January 11-12, 2014.             (Id. at 91-93.)

Comcast identified appellant as the person to whom the Internet Protocol

Address was assigned. (Id. at 93-96.) Law enforcement personnel located

child pornography on the computer including some images that were posted

to Tinypic from appellant’s computer.      Appellant admitted viewing these

images on his computer.       (Id. at 117-121.)         Further, Special Agent

John O’Brien of the Pennsylvania Office of Attorney General, Bureau of

Special   Investigation   Computer   Forensics   Unit    examined   appellant’s

computer’s hard drive, a thumb drive device, a desktop computer system,

and a USB connected external hard drive in connection with the case.

(Notes of testimony, 11/12/15 at 21.) His examination revealed evidence of

the possession of child pornography as well as searches for pornographic

subjects and chat transcripts which indicated that appellant had shared child

pornography with other chat participants. (Id. at 23-35.) Appellant denied

that he possessed or disseminated child pornography. (Id. at 68-71.) The

jury, as fact-finder, apparently credited the Commonwealth’s testimony.


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See Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa.Super. 2014)

(the jury as finder-of-fact determines the credibility of witnesses and weight

of evidence produced is free to accept all, part, or none of the evidence).

      Appellant essentially asks this court to reweigh the evidence and

assess the credibility of the witnesses presented at trial. That task is beyond

this court’s scope of review.   See Commonwealth v. Talbert, 129 A.3d

536, 546 (Pa.Super. 2015).      The jury is the factfinder and found that the

credible evidence identified appellant as the possessor and distributor of

child pornography.    That verdict is not so contrary to the evidence as to

shock the conscience. Based on the record before this court, we do not find

that the trial court abused its discretion when it declined to grant appellant’s

post-trial motion concerning the weight of the evidence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/17/2017




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