Loading...
HomeMy WebLinkAboutCP-21-CR-0000831-2007 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-0831-2007 : V. : CHARGE: 2. SEXUAL ABUSE OF : CHILDREN (29 COUNTS); : 3. CRIMINAL USE OF COMMUNICATION : FACILITY (ONE CONSOLIDATED COUNT) : JEFFREY WAYNE BAKER : OTN: K597411-3 : AFFIANT: DET. EARL BOCK IN RE: OPINION PURSUANT TO P.A. R.A.P. 1925 Ebert, J., March 29, 2010- In this criminal case, Defendant was found guilty of the above counts following a jury trial held July 14-15, 2008. Defendant appeals the jury verdict and resulting sentencing based on the following: 1. The evidence is insufficient to sustain Defendant’s convictions of Count 2 (29 counts) in that the Commonwealth failed to prove Defendant knowingly possessed the contraband. 2. The lower court erred when it failed to give Defendant’s requested jury instruction regarding voluntariness of his pretrial statement. 3. Defendant was improperly classified as an SVP, in that there was no victim(s), no violence or predatory behavior, and Defendant did not meet the criteria of pedophilia. 4. 42 Pa. C.S. § 9718.2 is unconstitutional in that it mandates imposition of a th sentence that is cruel and unusual (disproportionate) in violation of the 8 Amendment, U.S. Constitution, and Article I, § 13, PA Constitution. 5. The lower court erred when, over Defendant’s objection, it allowed Defendant to be tried and sentenced on Count 2 (29 counts) when said counts stemmed from a single transaction/source. Statement of Facts On February 6, 2007, Detective Adam Shope of the East Pennsboro Police Department, Detective Earl Bock of the District Attorney’s Office, along with several other officers, served a 1 search warrant at 115 South Enola Drive in Enola, Pennsylvania. Defendant, 34 year old Jeffrey 2 Baker, resides at the address with his father, Jack Baker, and his stepmother, Ruth Murray. Officers were acting on cybertips reported through America Online’s (AOL) legal department that identified Defendant’s email account as containing images that appeared to be child 3 pornography. Officers had a search warrant for Defendant’s computer and other computer 4 hardware, software, CDs, DVDs which they believed to contain child pornography. Defendant was naked in bed sleeping when officers arrived, and his laptop computer was on a table by the 5 side of his bed. Defendant told Detective Bock that he conducted web searches using the search term “anal gang bang” and downloaded files with names that led him to believe that they were child pornography, and that he had downloaded files as recently as the night before the search 6 warrant. Defendant told Detective Bock that he used emails and a file-sharing website to trade 7 nude and non-nude images of children. Detectives seized Defendant’s computer and other evidence from the residence and left 8 without arresting Defendant at that time. Defendant told detectives that they would find child 9 pornography on the seized computer. Defendant’s laptop computer was attached to a write- 10 blocker, which is a device that prevents additional items from being added to the hard drive. The content was analyzed by the Pennsylvania State Police and by the National Children’s 1 Notes of Testimony 74-75. 2 N.T. 75-76. 3 Affidavit of Probable Cause, Feb. 6, 2007. 4 N.T. 77, 100. 5 N.T. 78-79. 6 N.T. 120-121. 7 N.T. 120. 8 N.T. 123. 9 Criminal Complaint. 10 N.T. 103. 2 11 Resource Center. Defendant’s computer was found to contain 34 video files of child 12 pornography. Additional child pornography files were found on two CDs seized from 13 Defendant’s bedroom. Procedural History A criminal complaint was filed on March 9, 2007, and Defendant was arrested on March 15, 2007. Defendant filed a Motion to Suppress on October 22, 2007. A hearing on the Motion was held before Judge J. Wesley Oler, Jr., on January 2, 2008. The Defendant’s Motion was denied. A jury trial was then held on July 14 and 15, 2008. The Defendant was found guilty of the above-captioned charges and was ordered to submit to an assessment by the Sexual Offender Assessment Board. A hearing was held on April 20, 2009, to determine Defendant’s status as a Sexually Violent Predator. After the hearing and consideration of briefs submitted by the parties, the Court found the Defendant to be a Sexually Violent Predator. On May 12, 2009, Defendant was sentenced to a term of state imprisonment for twenty-five years. This was the mandatory minimum sentence required under 42 Pa. C.S. § 9718.2 and § 9795.1 of the Pennsylvania Sentencing Code. Defendant now appeals the jury verdict, his classification as an SVP, and his sentence. Discussion I. Jury Verdict Was Supported by Sufficient Evidence Defendant maintains that the Commonwealth failed to present sufficient evidence for a jury to conclude that Defendant knowingly possessed the contraband. The standard of reviewing the sufficiency of the evidence is whether the evidence admitted at trial and all reasonable inferences drawn from evidence presented, when viewed in the light most favorable to the 11 N.T. 104-105. 12 Criminal Complaint, March 9, 2007. 13 Criminal Complaint. 3 Commonwealth as the verdict winner, is sufficient to support all the elements of the offense beyond a reasonable doubt. Commonwealth v. Strouse, 909 A.2d 368, 369 (Pa. Super. 2006). The jury, as the trier of fact, weighs the credibility of the witnesses and the evidence produced and is free to believe all, part, or none of the evidence. Commonwealth v. Brotherson, 888 A.2d 901 (Pa. Super. 2005). Our Supreme Court has held that accessing and viewing child pornography over the internet constitutes “control” of such pornography under 18 Pa. C.S. § 6312(d). Com. v. Diodoro, 970 A.2d 1100, 1108 (Pa. 2009). The relevant section of the statute reads (d) Child pornography. -- possesses or controls (1) Any person who intentionally views or knowingly 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. § 6312(d). (Emphasis added) or It is important to note that the statute applies to possession control of any of the prohibited material. Similar to the present case, the Defendant in Diodoro was found guilty of violating § 6312(d). Defendant in that case appealed on the basis that the Commonwealth failed to prove that he knowingly controlled child pornography, while in the present case Defendant appeals based on the Commonwealth’s failure to prove his knowing possession of child pornography. However, the Supreme Court confirmed that the statute applies to either control or possession, and that if the Commonwealth proves one, it need not prove the other. Furthermore, the Court stated that an individual manifests such knowing control of child pornography when he purposefully searches it out on the internet and intentionally views it on his computer. Diodoro 970 A.2d at 1107 (Pa. 2009). 4 In this case it is likely that the jury found the Commonwealth’s evidence sufficient to prove that Defendant possessed as well as controlled child pornography. The jury heard Detective Shope’s testimony that Defendant had his computer on a desk within arm’s reach of his bed, that Defendant was first targeted for investigation because of images of child pornography that were flagged as cybertips through his AOL email account, and heard Detective Bock’s testimony that child pornography was found on Defendant’s computer. Defendant told Detective Bock that he downloaded files using search terms “anal gang bang” and “PTHC” 14 which means “preteen hard core.” Videos containing child pornography were found on disks in Defendant’s room. The jury heard Detective Bock describe how Defendant’s computer was “write-blocked” after being seized so that no content could be added. The disks found were viewed with write-blockers so that no settings were changed and no content was added or altered. Defendant’s computer was the only one in the house that was connected to the internet. While it was not necessary for the Commonwealth to prove possession and control, only one or the other, it is certainly reasonable that the jury did conclude that Defendant both possessed and controlled child pornography. Images and videos of child pornography were found on Defendant’s computer and on disks in Defendant’s room. The jury was free to evaluate all of this evidence, and in doing so determined that Defendant knowingly possessed or controlled child pornography. II. Denial of Proposed Jury Instructions Was Proper Defendant claims that this Court erred by denying his specific request for Standard Jury Instruction 3.04D. Defendant appeals this Court’s denial of his proposed jury instructions. A charge is considered adequate unless the jury was misled or unless there is an omission which constitutes fundamental error. Com. v. Brown, 911 A.2d 576, 583 (Pa. Super. 2006) (citing 14 N.T. 121. 5 Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006)). The trial court has wide discretion in fashioning jury instructions. Id. The trial court is not required to give every charge that is requested by the parties and its refusal to give a requested charge does not require reversal unless the appellant was prejudiced by that refusal. Id. The Standard Jury Instruction requested by the Defendant reads as follows: 1. In determining voluntariness, you should also consider whether there was any violation of the requirements of the U.S. Supreme Court case of Miranda v. Arizona. Miranda requires that the police, before questioning a suspect in custody, give him or her the Miranda warning. The essence of the warning is that a suspect has the right to remain silent, that anything he or she says can be used against him or her, and that he or she has the right to the advice and presence of his or her own or a free attorney. The police are not to question a suspect unless he or she understands the warning and knowingly, intelligently, freely, and voluntarily gives up his or her rights to silence and an attorney. 2. Whether or not there was a violation of the Miranda requirements may be an important factor for you in determining whether a standard meets the basic test of voluntariness. The importance of any Miranda violation depends upon the nature, the seriousness, and reasons for the violation and whether it affected the defendant at the time [he] [she] made a statement. Prior to the trial, Judge J. Wesley Oler, Jr., heard the suppression hearing in this case. Defendant maintained that he was in custody and had not been given Miranda warnings. After hearing, Judge Oler issued an opinion in which he found that “the Defendant was not formally under arrest at the time he spoke with the police, nor, in the Court’s view, was he subjected to conduct on the part of the police that could be objectively construed as constituting restraint upon his freedom equivalent to a formal arrest.” On these facts found by Judge Oler, he denied suppression of the Defendant’s statements indicating that the Defendant was not entitled to the administration of Miranda warnings prior to being questioned by the police. 6 The Court did give Pa. SSJI (Crim) 3.03 relating to the genuineness of the Defendant’s statement, Pa. SSJI (Crim) 3.04A relating to the voluntariness of the Defendant’s statement to police, Pa. SSJI (Crim) 3.04B relating to the basic standard for voluntariness of the Defendant’s statement, and Pa. SSJI (Crim) 3.04C relating to proof of voluntariness of the Defendant’s statement based on the totality of the circumstances. Pa. SSJI (Crim) 3.04D, relating to the use of Miranda warnings before questioning a subject in custody, was not given because there was absolutely no evidence during the trial that raised any issue as to whether there was a Miranda violation. Furthermore, a judge of this Court had specifically ruled before trial that the Defendant was not in custody and Miranda warnings were not required. This case is unlike Com. v. Motley where the Pennsylvania Supreme Court ruled that despite the inapplicability of Miranda, the trial court’s failure to provide specific instruction to the jury that the absence of warnings or advice was a relevant factor in determining the voluntariness of Defendant’s admissions. Com. v. Motley, 372 A.2d 764, 769 (Pa. 1977). In that case the Defendant was clearly under arrest and testified at trial that he was never advised of his constitutional right to remain silent. Furthermore, the trial judge in that case specifically instructed the jury that police were under no obligation to advise appellant of his constitutional rights and further instructed the jury that its determination whether warnings were given could not be the sole basis for a decision on voluntariness. Id. at 770. The Court reasoned that absence of warnings is unquestionably an attendant circumstance which the accused is entitled to have considered in determining voluntariness and admissibility of his confession. Id. at 770. In Motley, the Court ruled that the charge given precluded such consideration by the jury. The Court also noted that the admissions made by the Defendant “constituted the heart of the Commonwealth’s case against Appellant. There was no independent 7 evidence linking him to the crime.” Id at 767. Accordingly, the Court felt that given the importance of these admissions, it could not be said that the error in the charge was harmless beyond a reasonable doubt. This is hardly the scenario in the case at bar. Here the electronic evidence directly linked the AOL account screen name “jump your bones on 3” to Defendant, Jeff Baker. The computer in question, which contained a large quantity of child pornography, was located within inches of where the Defendant was found sleeping. In this case, the omission of Pa.SSJI (Crim) 3.04D was harmless beyond a reasonable doubt. In the present case, this Court in no way instructed the jury about how it was to consider the fact that no warnings were given. Instead, the Court properly instructed the jury to consider all facts and circumstances in determining whether the statement was voluntary. The charge specifically instructed the jury that it should consider the attitudes of police as well as what was said and done by the police. The jury was aware that Miranda warnings were not given and heard Detective Bock’s testimony of why such warning was not necessary. The jury took this into consideration in evaluating all the facts and circumstances of voluntariness, and a further instruction on specific omission of Miranda warnings would not have made a difference in the jury’s verdict. III. Classification as a Sexually Violent Predator (SVP) Was Proper Defendant contends that he was improperly classified as a SVP because there were no victims, no violence or predatory behavior, and Defendant did not meet the criteria of pedophilia. We disagree. A hearing for determining Defendant’s status as a Sexually Violent Predator was held on April 20, 2009. The Court heard from Herbert Hays, a criminal justice expert in sexual offender 8 15 assessments and board member for the Pennsylvania Sexual Offenders Assessment Board. Hays gave his opinion to a reasonable degree of professional certainty that Defendant met the 16 criteria for a SVP according to the Megan’s Law Statute. Hays based his opinion on his belief that Defendant has a mental abnormality in the form of pedophilia, that Defendant has a prior conviction for possession of child pornography, and that Defendant continued to seek child 17 pornography on the internet even after five years of intermediate punishment. Defendant also made overt attempts to solicit adult women in the Philippines to obtain young girls, under age thirteen, and pay them to perform specific sex acts on the girls that Defendant could watch over a 18 live web camera. The present case is unlike Com. v. Gomolekoff where the Defendant was not found to be a SVP although he was found guilty of 15 counts of child pornography for images stored on his computer. Commonwealth v. Gomolekoff, 910 A.2d 710 (Pa. Super. 2006). However, in the case at bar, we know that Defendant has resumed his search for child pornography after a previous conviction. More importantly, Defendant was actively seeking children to perform sexual acts over a webcam, which is predatory conduct that encourages the use of young victims in child pornography, and is the type of behavior Megan’s Law was designed to prevent. IV. 42 Pa. C.S. § 9718.2 is Constitutional Defendant maintains that 42 Pa. C.S. § 9718.2 is unconstitutional in that it mandates th imposition of a sentence that is cruel and unusual in violation of the 8 Amendment of the U.S. Constitution and Article I, § 13 of the Pennsylvania Constitution. 15 Transcript, Sexually Violent Predator Hearing, 18, held April 20, 2009 (hereinafter SVP ___). 16 SVP 24. 17 SVP 24-25. 18 SVP 25. 9 When courts are called upon to examine the constitutionality of a statute, all doubts regarding constitutionality are to be resolved in favor of sustaining the legislation. Commonwealth v. Adamo, 637 A.2d 302, 306 (Pa. Super. 1994). “A statute is presumed to be constitutional and will not be declared unconstitutional unless it clearly, palpably, and plainly violates the Constitution.” Commonwealth v. Howe, 842 A.2d 436, 441 (Pa. Super. 2004). The U.S. Supreme Court has consistently held that consideration of a Defendant's prior 19 convictions in enhancing a sentence does not typically result in a constitutional violation. The Pennsylvania Superior Court has relied on numerous Supreme Court cases to uphold Pennsylvania sentencing statutes which provide for increased and/or mandatory sentences for repeat offenders. Com. v. Arriaga, 618 A.2d 1011, 1013-1014 (Pa.Super.1993) (see e.g., Commonwealth v. Grady, 486 A.2d 962, 964 (1984) (Vehicle Code provision mandating imprisonment for second DUI offense constitutional). Furthermore, it is settled law that the fixing of penalties for crimes is a legislative function. U.S. v. Wallace , 269 F.2d 394, 398 (3d Cir. 1959). A sentence within the limits prescribed by law for an offense will not ordinarily be regarded as cruel or unusual or excessive punishment. Id. (citing Martin v. United States, 100 th F.2d 490, 497 (10 Cir. 1938). The Pennsylvania legislature has determined an appropriate minimum sentence for offenses like those committed by Defendant. The legislature has obviously intended to impose such sentences in an effort to curtail conduct that encourages child pornography and found it appropriate to increase sentences for repeat offenders. Pennsylvania Courts have upheld the 19 See Rummel v. Estelle, 445 U.S. 263 (1980) (recidivist statute does not violate Due Process nor constitute cruel and unusual punishment); Spencer v. Texas, 385 U.S. 554 (1967) (sentence enhancement for prior crimes does not violate Due Process, Equal Protection, Privileges and Immunities or Double Jeopardy clauses); Moore v. Missouri, 159 U.S. 673 (1895) (consideration of prior record does not violate Equal Protection, Cruel and Unusual Punishment or Double Jeopardy clauses). 10 constitutionality of countless mandatory minimum sentences, and Defendant’s sentence based on the statutory mandatory minimum sentence does not pose any constitutional violations. V. Defendant’s Trial and Sentencing on 29 Counts Was Proper Defendant claims that this Court erred by allowing Defendant to be tried and sentenced on Count 2 (29 counts) when said counts stemmed from a single transaction or source. Authority in this area is clear that each image of child pornography represents a violation of the statute and can properly be charged separately. The Pennsylvania Supreme Court affirmed the Superior Court’s reasoning in Commonwealth v. Koehler, which was that Section 6312(d) specifically criminalizes possession of any computer depiction, not possession of a computer hard drive which could contain an unknown quantity of images. Com. v. Davidson, 928 A.2d 198, 219 (Pa. 2007) (citing Com. v. Koehler, 914 A.2d 427,439 (Pa. Super. 2006)). The plain language of the statute evidences the intent of the General Assembly to make each image of child pornography possessed by an individual a separate, independent crime under Section 6312 (d). Davidson, 938 A.2d at 219. The Court further noted that the General Assembly clearly intended to target individual instances of possession because each use of a minor to create a visual depiction of child pornography constitutes a separate and distinct abuse of that child, and thus represents an individual violation of the statute. Id. Therefore, in this case, it is clear that Defendant was properly charged, tried, and sentenced on 29 counts of child pornography because each image represented a separate violation of the statute. 11 VI. Conclusion A jury properly found Defendant guilty of the above charges based on sufficient evidence provided by the Commonwealth. The jury considered testimony and weighed credibility of witnesses as it is entitled to do. Denial of Defendant’s proposed jury instruction was within the Court’s discretion and was not improper because Defendant was never under arrest and any statement made was voluntary. Defendant’s SVP classification was properly supported because of the repetitive and predatory nature of his conduct, particularly his solicitation of adult females to conduct sexual acts with young girls. Defendant’s appeal of his sentence as unconstitutional is unfounded. Finally, Defendant was properly tried on 29 counts because each was a separate image, and the statute is specifically designed to treat each image as a separate violation. By the Court, ________________________________ M. L. Ebert, Jr., J. Michelle H. Sibert, Esq. Attorney for Commonwealth Charles P. Mackin, Esq. Attorney for Defendant 12