J-A04012-17

2017 PA Super 84

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

NATHAN ROBERT SAUERS,

Appellant No. 3123 EDA 2015

Appeal from the Judgment of Sentence June 16, 2015

In the Court of Common Pleas of Monroe County

Criminal Division at No(s): CP-45-CR-0002645-2013

BEFORE: SHOGAN, SOLANO, and PLATT,*JJ.

OPINION BY SHOGAN, J.: Filed March 29, 2017

Nathan Robert Sauers (“Appellant”) appeals from the judgment of 

sentence entered on June 16, 2015, in the Monroe County Court of Common 

Pleas. We affirm the convictions, vacate in part the judgment of sentence, 

and remand for re-sentencing.

On August 4, 2013, Monroe County Detective Brian Webbe was using a 

proprietary police version of the Ares peer-to-peer file-sharing network1

____________________________________________

*

 Retired Senior Judge assigned to the Superior Court.

1

 “The internet-based, peer-to-peer program in this case, Ares, is available 

online as a free, downloadable program enabling a user to place files in and 

retrieve and download files from a shared folder accessible to other Ares 

users.” Commonwealth v. Colon-Plaza, 136 A.3d 521, 524 n.4 (Pa. 

Super. 2016).
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known as Ares Round-up Software (“software”) to investigate on-line child 

pornography. During his search, Detective Webbe identified a computer 

with an IP address of 50.29.128.171 and a username of “FromK9to5” as 

containing downloaded child pornography. The detective downloaded ten 

files from the suspect computer. Armed with a court order, Detective Webbe 

identified Appellant as the owner of the IP address and username. Upon 

execution of a search warrant at Appellant’s home, Detective Webbe found 

Appellant’s Dell laptop computer. Because no child pornography was 

immediately discovered on the computer, Detective Webbe used forensic 

software to examine the computer. He found files indicating that Appellant’s 

computer had recently downloaded the Ares program and that the program 

had been used to view, download, and share child pornography. 

Appellant was charged with ten counts of possession of child 

pornography, ten counts of dissemination of child pornography, and one 

count of criminal use of a communications facility.2 Following a more indepth examination of Appellant’s computer, Detective Webbe found an 

additional eighty-seven files containing child pornography in the unallocated 

space of Appellant’s computer. Consequently, Appellant was charged under 

a separate docket with eighty-seven counts of possession of child 

pornography. The cases were joined for trial. 

____________________________________________

2

 18 Pa.C.S. § 6312(c), (d), and § 7512, respectively.
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A jury convicted Appellant on all eleven counts on the first docket, and 

it acquitted him of the eighty-seven counts on the second docket. The trial 

court sentenced Appellant to incarceration for an aggregate term of sixty to 

120 months. Additionally, the trial court designated Appellant as a Tier III 

sexual offender and directed his compliance with the lifetime reporting 

requirements of the Sexual Offender Registration and Notification Act 

(“SORNA”), 42 Pa.C.S. §§ 9799.10–9799.41. Appellant filed post-sentence 

motions, which the trial court denied. Appellant filed a timely appeal. He 

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

On appeal, Appellant raises the following questions for our review:3

1. Whether the trial court abused its discretion when it admitted 

into evidence video evidence of child pornography and 

photographic evidence of child pornography without first 

viewing the entire content prior to publishing same to the jury 

thereby inflaming the passions of the jury, and thus, denying 

[A]ppellant a fair trial.

2. Whether the failure of the Commonwealth to provide and/or 

allow forensic evaluation of their “Modified Ares – Roundup[”] Software denied [A]ppellant a fair trial under Article I 

Section 9 of the Pennsylvania Constitution, and the 6th and 

14th Amendment[s] of the United States Constitution, 

____________________________________________

3

 Appellant’s Pa.R.A.P. 1925(b) statement filled five pages and consisted of 

eighteen paragraphs, several of which had multiple subparts. The trial court 

deemed most of the issues waived on the basis of the statement’s 

imprecision and vagueness, and the remaining issues meritless. Trial Court 

Opinion, 1/19/16, at 10, 11. Additionally, Appellant’s brief fails to include a 

copy of the trial court’s opinion or a Rule 1925(b) statement of errors, as 

required under Pa.R.A.P. 2111(a)(10) and (11). Although we do not 

condone these defects, they do not prevent effective appellate review in this 

case; therefore, we will address Appellant’s issues.
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AND

Whether the Commonwealth’s claim that the “Modified 

Ares – Round-up[”] Software is proprietary, and thus 

not subject to distribution or review by outside 

computer forensic experts denied [Appellant] a fair trial 

by preventing [Appellant] from confronting the evidence 

against himself at trial under the Pennsylvania 

Constitution, Article 1 Section 9, and the “confrontation 

clause” of [the] 6th Amendment of the United States 

Constitution.

3. Whether the evidence was sufficient to support the verdict 

that [Appellant] actually possessed and/or disseminated child 

pornography.

4. Whether the trial court’s jury instructions regarding the 

definition of possession which included the trial court judge’s 

own instruction ignored other jurisdictions definitions of 

possession, and denied [Appellant] a fair trial under both 

Article I Section 9 of the Pennsylvania Constitution and the 6th

Amendment of the United States Constitution.

5. Does a trial court deny a defendant a fair trial under Article I 

Section 9 of the Pennsylvania Constitution, Sixth Amendment, 

and the Fourteenth Amendment of the United States 

Constitution where it denies individual voir dire in a child 

pornography case where: the social prejudices associated 

with child pornography in a public forum voir dire denies a 

defendant the ability in vetting individual jurors regarding 

social, religious and personal prejudices on the subject of 

child pornography?

6. Whether the sentencing court abused its discretion where it 

made repeated references during sentencing, trial, and 

pretrial to the fact that [Appellant] made the trial court and 

the jurors see the child pornography during his trial, and 

thus, subjected the jury to being victims themselves.

7. Whether the sentencing court abused its discretion wherein 

the record demonstrates repeatedly that the sentencing court 

punished [Appellant] for taking his case to trial.
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8. Whether the trial court abused its discretion where it used a 

far more egregious case as its reasons and justifications for 

imposing the sentence it did upon [Appellant]. 

9. Whether the sentencing court abused its discretion where it 

imposed incarceration upon [Appellant] (a first time 

offender[)] where the very case the sentencing court used to 

justify its sentence was a case involving a recidivist offender.

Appellant’s Brief at 7–8 (renumbered).

Appellant first challenges the admission of the Commonwealth’s 

photographic and video evidence of child pornography. With regard to the 

admission of evidence:

we give the trial court broad discretion, and we will only reverse 

a trial court’s decision to admit or deny evidence on a showing 

that the trial court clearly abused its discretion. An abuse of 

discretion is not merely an error in judgment, but an overriding 

misapplication of the law, or the exercise of judgment that is 

manifestly unreasonable, or the result of bias, prejudice, ill-will 

or partiality, as shown by the evidence or the record.

Commonwealth v. Flamer, 53 A.3d 82, 86 (Pa. Super. 2012) (citations 

and quotation marks omitted). The trial court will be reversed only if an 

error in the admission of evidence contributed to the verdict. 

Commonwealth v. Konias, 136 A.3d 1014, 1022 (Pa. Super. 2016), 

appeal denied, 145 A.3d 724 (Pa. 2016). 

Admissibility depends on relevance and probative value. 

Evidence is relevant if it logically tends to establish a material 

fact in the case, tends to make a fact at issue more or less 

probable, or supports a reasonable inference or presumption 

regarding a material fact. Once evidence is found to be relevant, 

it will be inadmissible only if its probative value is substantially 

outweighed by the danger of unfair prejudice or confusion.
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Commonwealth v. Lilliock, 740 A.2d 237, 244 (Pa. Super. 1999) 

(quotation marks and citations omitted); Pa.R.E. 403.

Appellant claims the trial court erred as “gate-keeper” when, prior to 

publishing the materials to the jury, the trial court viewed three still images 

and four videos that the Commonwealth intended to introduce but then 

allowed the Commonwealth to admit all of the videos, and, thereby “exposed 

the jury to hig[h]ly prejudicial and inflame[m]atory evidence without viewing 

[it] prior to showing it to the jury.” Appellant’s Brief at 11 (citing N.T., 

3/3/15, at 76–88, 184–202; United States v. Cunningham, 694 F.3d 372 

(3rd Cir. 2012)). Additionally, Appellant argues, admission of ninety-seven 

images and videos, when Appellant was willing to stipulate to their content, 

was prejudicial, cumulative, and not harmless error. Id. at 10, 12, 13.

In response, the Commonwealth explains, “[I]n an effort to minimize 

any potential prejudicial effect, the Commonwealth sought to introduce only 

a sample of the [challenged] evidence and not the entire ‘collection.’” 

Commonwealth’s Brief at 9. Moreover, although it was not required to do 

so, the Commonwealth would have agreed to Appellant’s stipulation that the 

remaining images constituted child pornography, but Appellant refused to 

stipulate. Consequently, the Commonwealth considered it necessary to 

show all of the images to sustain its burden. Id.; N.T., 3/3/15, at 12, 74.

The trial court addressed this issue on the pretrial record as follows:

You can’t just say I object to all [of] the Commonwealth’s 

evidence that it may or may not put in and have a judge make a 
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peremptory ruling. What you can do is to say that if –– which is 

what both of you said this morning –– is that within that 

evidence there are some individual depictions, some individual 

videos that you believe that under no circumstance should come 

into this case and if you want to identify them and have me rule 

on them now I will; but I’m not going to rule on in the abstract 

what the Commonwealth may or may not put into evidence.

* * *

If I took your argument to its logical conclusion then in 

every criminal case the [c]ourt should have a pre-hearing 

conference, ask the Commonwealth to trot out it’s [sic] 

evidence, lay it out on the table, play it on a TV screen, get a 

tape recorder out here and play the audios, either get people to 

come in and give their testimony or provide a summary on it and 

then decide ahead of time what’s admissible and what’s not 

admissible.

I understand that that’s the logical full conclusion to what 

you’re arguing. I understand that the [c]ourt ultimately has to 

be the arbiter of what’s fair or not; but the [c]ourt just doesn’t 

go out and do things otherwise we don’t need a defense and the 

Commonwealth[;] we just look at the evidence ourselves and 

decide it.

* * *

This is sort of classic child pornography, and so in a child 

pornography case showing those seven, three of which were 

photos, none of which are unduly long, all of which are 

disturbing, doesn’t to me convert this into something that’s 

prejudicial to the point where the prejudicial outweighs the 

probative value.

N.T., 3/3/15, at 61, 70, 85. Upon review of the record, we agree with the 

trial court and conclude that Appellant’s first issue lacks merit.4 

____________________________________________

4

 “To the extent our legal reasoning differs from the trial court’s, we note 

that as an appellate court, we may affirm on any legal basis supported by 

(Footnote Continued Next Page)
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The Commonwealth sought to sustain its burden of proof by 

introducing the videos and photographs of child pornography recovered from 

Appellant’s computer. N.T., 3/3/15, at 83. Appellant did not file a pretrial 

request to exclude specific videos or photographs. Id. at 23–25, 60, 67–68, 

71, 73. Rather, on the eve of trial, Appellant sought to preclude the 

introduction of the Commonwealth’s entire evidentiary collection by 

stipulating to its content. Id. at 60–61. In response, the parties agreed to 

a sample viewing by the trial court of four videos and three photographs 

(“sample evidence”). Id. at 65–81, Exhibit 9. Appellant then objected to 

the sample evidence as unduly prejudicial. Id. at 82. Applying a “regular 

evidentiary prejudice vs. probative balancing analysis,” the trial court ruled 

that it would allow the Commonwealth to present the sample evidence. Id.

at 16–18, 85. As to the Commonwealth’s remaining videos and photographs 

(“remaining evidence”), the trial court declined to rule on their admissibility 

until an issue arose at trial. Id. at 86. 

During trial, the Commonwealth moved for admission of the sample 

evidence on a DVD and for admission of the remaining evidence on a thumb 

drive. N.T., 3/4/15, at 163–164, Exhibits 9 and 10, respectively. The trial 

court recognized Appellant’s continuing objection to the sample evidence, 

and Appellant raised no objection to the remaining evidence. Id. at 164. 

(Footnote Continued) _______________________

the certified record.” Commonwealth v. Williams, 125 A.3d 425, 433 n.8 

(Pa. Super. 2015).
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The Commonwealth then published the sample evidence to the jury through 

Detective Webbe. Id. at 184–189, Exhibit 9. To avoid having to publish the 

remaining evidence, the prosecutor specifically asked defense counsel at a 

side bar if Appellant would stipulate that the remaining evidence constituted 

child pornography. Id. at 190. Defense counsel responded, “We can’t 

stipulate.” Id. Therefore, the Commonwealth published the remaining 

evidence to the jury, and Appellant did not object. Id. at 191–199, Exhibit 

10.

Based on the record before us and our deferential standard of review, 

we discern no error in judgment or manifestly unreasonable exercise of 

judgment, no overriding misapplication of the law, no bias, prejudice, ill-will, 

or partiality by the trial court. Flamer, 53 A.3d at 86. With Appellant’s 

consent, the trial court previewed the sample evidence, applied a prejudiceversus-probative-value balancing analysis, set parameters for publication of 

the evidence to the jury, and enforced those parameters at trial. Trial Court 

Opinion, 1/19/16, at 14 n.5; N.T., 3/3/15, at 76–80; N.T., 3/4/15, at 166–

169, 184–189, Exhibit 9. We approve of the trial court’s procedure. See 

Commonwealth v. Hicks, 91 A.3d 47, 54 (Pa. 2014) (holding that the 

balancing of probative value and prejudice is generally better left for trial, 

but may be appropriate in some pretrial situations). Moreover, the 

Commonwealth was not required to shelve its entire collection by accepting 

a defense stipulation designed to protect Appellant from the publication of 
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disturbing images to the jury. Accord Commonwealth v. Evans, 348 A.2d 

92 (Pa. 1975) (holding that the Commonwealth may use any “proper” 

evidence to prove its case, and does not have to accept the accused’s 

stipulations); Commonwealth v. Stanley, 446 A.2d 583 (Pa. 1982) (citing 

Evans). Furthermore, the evidence was not cumulative as “each image of 

child pornography possessed by an individual is a separate, independent 

crime under Section 6312.” Commonwealth v. Jarowecki, 985 A.2d 955, 

961 n.10 (Pa. 2009) (citation and quotation marks omitted). 

Additionally, as the trial court explained, any perceived error in the 

admission of the video and photographic evidence did not result in prejudice 

to Appellant:

if allowing the Commonwealth to introduce evidence of the child 

pornography or our failure to view all of it first truly inflamed the 

passions of the jury to the point where a guilty verdict was 

inevitable, the opportunity for a fair trial was removed, and the 

jurors could not, individually or collectively, be fair and impartial, 

we would have expected that [Appellant] would have been 

convicted in both cases.5. . . 

5

 [Appellant’s] argument is premised, in part, on the 

fact that we did not view all of the child pornography 

first. However, we did review a sample before trial 

began, set parameters for how the Commonwealth 

would be permitted to show the images and videos, 

and enforced the parameters during trial. (N.T.H., 

3/3/15, pp. 76–80); (N.T., 3/4/15, pp. 184–189). 

Further, despite [Appellant’s] protestations to the 

contrary, there is no ruling requiring the [c]ourt to 

preview and rule pre-trial on evidence. In the 

context of [Appellant’s] argument, the guiding 

evidentiary principle is that the evidence must be 

probative and its probative value must outweigh any 

prejudicial impact. As discussed in the text, the 
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acquittal in the companion case demonstrates that 

the images and videos were not unduly prejudicial.

However, [Appellant] was not convicted in both cases. His 

acquittal in the companion case amply demonstrates that the 

jurors’ passions were not inflamed and that any error in ruling 

we may be deemed to have made did not prejudice him to the 

point where he was constitutionally denied a fair trial. Absent 

the prejudice and harm he claims, [Appellant’s] assignments of 

error are bootless.

Trial Court Opinion, 1/19/16, at 14–15.

In sum, we conclude that the trial court did not err as gate-keeper 

when it previewed the sample evidence and was prepared to rule at trial on 

any defense objections to the remaining evidence. Thus, Appellant’s 

challenge to the admission of the sample evidence lacks merit. As for the 

remaining evidence, our review of the trial transcript reveals that the 

defense did not offer a timely and specific objection to its admission before 

or during the trial. N.T., 3/4/15, at 164, 191–199, Exhibit 10. “Such failure 

to offer a timely and specific objection results in waiver of this claim.” 

Commonwealth v. Bruce, 916 A.2d 657, 670 (Pa. Super. 2007) (citation 

omitted).5

____________________________________________

5

 Even if we were to find a challenge to the remaining evidence preserved, 

Appellant stipulated that the remaining evidence depicted child pornography. 

N.T., 3/3/15, at 8. Used for this purpose, the remaining evidence was 

clearly relevant and admissible to sustain the Commonwealth’s burden of 

proof on the second set of charges. Moreover, the trial court’s parameters 

for viewing the videos and photographs alleviated any concerns about the 

remaining evidence entering “the realm of being overly prejudicial.” N.T., 

3/3/15, at 86; N.T., 3/4/15, 166–169, 191–199. Additionally, Appellant was 

(Footnote Continued Next Page)
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A final aspect of Appellant’s first issue concerns his reliance on 

Cunningham, 694 F.3d 372, for the proposition that the trial court was 

required to review all of the Commonwealth’s videos and photographs before 

admitting them into evidence. In Cunningham, the Court of Appeals 

overturned the district judge’s decision to admit challenged evidence of 

pornography based only on his reading of the written descriptions of the 

video excerpts and not on his personal viewing of them. Id. at 383.

Appellant’s reliance on Cunningham is unavailing. “Absent a United 

States Supreme Court pronouncement, decisions of federal courts are not 

binding on state courts[.]” Commonwealth v. Walker, 139 A.3d 225, 

230–231 (Pa. Super. 2016), appeal denied, 257 EAL 2016 (Pa. Oct. 13, 

2016) (quoting Commonwealth v. Lambert, 765 A.2d 306, 315 n.4 (Pa. 

Super. 2000) (citation omitted)). Moreover, we distinguish Cunningham on 

several fronts. First, Mr. Cunningham challenged specific video excerpts and 

photographs in pretrial motions. Cunningham, 694 F.3d at 377–378. 

Contrarily, Appellant did not identify which specific videos or photographs he 

was challenging in a pretrial motion. N.T., 3/3/15, at 25. Second, the 

district court determined admissibility based solely on graphic written 

descriptions of the challenged video excerpts. Cunningham, 694 F.3d at 

(Footnote Continued) _______________________

acquitted of all charges based on the remaining evidence. N.T., 3/6/15, at 

110. Therefore, there exists no merit to this challenge, even if it were 

properly preserved.
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380. This component is not present in the case at hand. Third, the district 

court did not review any of the challenged video excerpts before admitting 

them over objection. Id. Here, with Appellant’s approval, the trial court 

viewed the sample evidence proffered by the Commonwealth at a pretrial 

hearing. N.T., 3/3/15, at 75–78. Fourth, the district court admitted all of 

the challenged video excerpts despite the probative value of some of them 

being outweighed by their prejudicial effect. Cunningham, 694 F.3d at 

389–390. Here, applying a balancing test and strict parameters, the trial 

court admitted the sample evidence, which it found more probative than 

prejudicial, and the remaining evidence, to which Appellant did not object. 

N.T., 3/4/15, at 164, 166–169. Cunningham is inapposite.

In his second issue, Appellant presents a constitutional challenge to 

the Commonwealth’s software. Our rules of criminal procedure provide that 

the Commonwealth is not required to produce discovery that is neither 

inculpatory nor exculpatory; nor is it required to produce its investigatory 

methods. Pa.R.Crim.P. 573(B)(1). Additionally, issues not raised in the trial 

court are waived and cannot be raised for the first time on appeal. Pa.R.A.P. 

302(a).

Appellant complains that he was denied his right to confront the 

evidence against him under the United States and Pennsylvania 

Constitutions because the Commonwealth refused to allow an evaluation of

the software by Appellant’s forensic expert. Appellant’s Brief at 15–22. In 
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response, the Commonwealth argues that Appellant has waived this issue by 

failing to preserve it in the trial court. Commonwealth’s Brief at 15.

The record reveals that Appellant requested discovery of the software 

at the direction of his forensic computer expert, Dr. Rebecca Mercuri. 

Motion to Compel, 7/1/14, at ¶¶ 9, 10, Exhibit B. Because the 

Commonwealth refused to deliver the software, claiming that it was a 

proprietary investigative tool, the trial court conducted two omnibus 

hearings, accepted briefs, and entered an order requiring the 

Commonwealth to disclose the name and version of the software. N.T., 

7/16/14; N.T., 9/29/14; Order, 7/18/14. By the start of a third omnibus 

hearing, the software discovery issue appeared to have been settled because 

the Commonwealth provided the name and version of the software. N.T., 

1/12/15, at 5–6. Nonetheless, Appellant again challenged the 

Commonwealth’s refusal to deliver the software and, for the first time, 

raised the Sixth Amendment confrontation clause. N.T., 1/12/15, at 43. 

The trial court rejected Appellant’s discovery argument, stating “[I]t’s not an 

open issue[.]” Id. at 45. Appellant next raised the confrontation clause in 

his Brief in Support of Post Sentence Motion. Brief in Support of Post 

Sentence Motion, 9/9/15, at 7. At the post-sentence motion hearing, the 

trial court addressed this issue as follows:

Next, is the Confrontation Clause. [Appellant] has 

challenged –– has requested that he actually be able to inspect 

and review the Commonwealth’s software from the beginning of 

this case. 
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I ruled on that matter several times and stated my reasons 

already. Now, the defense has –– now, the defense has taken a 

different tact, and has indicated that the Commonwealth’s 

refusal to allow him to do so and my ruling somehow violated 

[Appellant’s] Confrontation Rights.

I don’t find any legal support for that argument. I also 

believe that the Commonwealth has crept [sic] that that 

particular argument wasn’t raised or preserved in any earlier ––

in a prior stage in this case, and is mentioned in the brief but not 

in the post-sentence motion of [Appellant].

Finally, I will point out that while [Appellant] is talking 

about the Confrontation Rights, which, of course, requires a 

meaningful opportunity to confront those who present evidence 

against you, the record amply demonstrates that substantial 

discovery was provided to [Appellant]; that the defense expert 

was here for more than a day; and that she spent time with 

Detective Webb[e]; that she spent time with the hardware; that 

she knew about the software; that many, many documents and 

lots of information about this were provided to the defense 

ahead of time; that the expert had a sufficient basis and a 

substantial basis on which to testify –– the defense expert that is 

–– and that Detective Webb[e] was vigorously cross-examined 

by counsel for [Appellant].

So, to the extent that the Confrontation Clause argument 

has legs, I don’t think they have any merit.

N.T., 9/21/15, at 25–27. Finally, Appellant raised the confrontation clause 

issue in his statement of errors. Pa.R.A.P. 1925(b) Statement, 11/3/15, at 

¶¶ 1, 2.

Upon review of the certified record, we conclude that this issue is 

waived because Appellant did not properly preserve it in the trial court. This 

failure is not cured by submitting the challenge in a Rule 1925(b) statement. 

Accord Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003) 
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(holding that guilty plea issue was waived where appellant did not raise it in 

the trial court before raising it in his Rule 1925(b) statement).6

Appellant’s third issue challenges the sufficiency of the evidence that 

he possessed and disseminated child pornography. Appellant’s Brief at 22. 

We employ a well-settled standard of review for sufficiency claims:

The standard we apply in reviewing the sufficiency of 

evidence is whether, viewing all the evidence admitted at trial in 

the light most favorable to the verdict winner, there is sufficient 

evidence to enable the fact-finder to find every element of the 

crime beyond a reasonable doubt. In applying the above test, we 

may not weigh the evidence and substitute our judgment for 

that of the fact-finder. In addition, we note that the facts and 

circumstances established by the Commonwealth need not 

preclude every possibility of innocence. Any doubts regarding a 

defendant’s guilt may be resolved by the fact-finder unless the 

evidence is so weak and inconclusive that as a matter of law no

probability of fact may be drawn from the combined 

circumstances. The Commonwealth may sustain its burden of 

proving every element of the crime beyond a reasonable doubt 

by means of wholly circumstantial evidence. Moreover, in 

applying the above test, the entire record must be evaluated and 

all evidence actually received must be considered. Finally, the 

trier of fact while passing upon the credibility of witnesses and 

the weight of the evidence produced, is free to believe all, part 

or none of the evidence. 

Commonwealth v. Colon-Plaza, 136 A.3d 521, 525–526 (Pa. Super. 

2016) (quoting Commonwealth v. Robertson–Dewar, 829 A.2d 1207, 

1211 (Pa. Super. 2003)).

____________________________________________

6

 Even if this issue were not waived, we would affirm the trial court’s 

conclusion on the basis of its post-sentence remarks and its well-reasoned 

opinion to this Court. N.T., 9/21/15, at 25–27; Trial Court Opinion, 1/19/16, 

at 22–25.
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A person is guilty of sexual abuse of children, dissemination of 

photographs, videotapes, computer depictions, and films, if he “knowingly... 

possesses for the purpose of sale, distribution, delivery, dissemination, 

transfer, display or exhibition to others, any...computer depiction...depicting 

a child under the age of [eighteen] years engaging in a prohibited sexual act 

or in the simulation of such act....” 18 Pa.C.S. § 6312(c). Similarly, “[a]ny 

person who intentionally views or knowingly possesses or controls any ... 

computer depiction ... depicting a child under the age of [eighteen] years 

engaging in a prohibited sexual act or in the simulation of such act commits” 

sexual abuse of children, child pornography. 18 Pa.C.S. § 6312(d).

The crux of Appellant’s argument is that the Commonwealth proffered 

partial downloads from his Dell laptop which were insufficient to sustain the 

convictions of possession and dissemination. Appellant’s Brief at 22–27. 

Notably, Appellant offers no binding, legal authority that the 

Commonwealth’s evidence was insufficient to support his convictions under 

18 Pa.C.S. § 6312(c), (d). Specifically, Appellant cites to the Third Circuit 

Court of Appeals’ decision in United States v. Husmann, 765 F.3d 169 (3d 

Cir. 2014), and the Ninth Circuit Court of Appeals’ decision in United States 

v. Flyer, 633 F.3d 911 (9th Cir. 2011). Appellant’s reliance on Husmann

and Flyer are unavailing. Again, absent a pronouncement by United States 

Supreme Court, decisions of federal courts are not binding on state courts. 
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Walker, 139 A.3d at 230–231. Moreover, Husmann and Flyer are 

distinguishable. 

In Husmann, the Court of Appeals concluded that the mere act of 

placing child pornography materials in a shared computer folder, available to 

other users of a file sharing network, does not constitute distribution of child 

pornography. The Court of Appeals based its ruling on the fact that the 

government did not present evidence that any person had actually 

downloaded or obtained the materials that Husmann made available in his 

shared computer folder. Husmann, 765 F.3d at 176. In contrast, here the 

Commonwealth presented evidence that Detective Webbe actually 

downloaded and obtained materials, including five complete files, from 

Appellant’s computer that were available to other users of the Ares filesharing network. N.T., 3/4/15, at 82–97.

In Flyer, the government recovered files from the unallocated space of 

Flyer’s Gateway computer hard drive. The government conceded, however, 

that it presented no evidence that Flyer knew of the presence of the files on 

the unallocated space or that Flyer had the forensic software required to see 

or access the files. Because there was no evidence that Flyer had accessed, 

enlarged, or manipulated any of the charged images, and he made no 

admission that he had viewed the charged images on or near the time 

alleged in the indictment, the Court of Appeals overturned Flyer’s conviction 

for possession of child pornography. Flyer, 633 F.3d at 919. In contrast, 
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Detective Webbe testified that Appellant had accessed the images recovered 

from the unallocated space of his computer and then deleted them;

nevertheless, the jury acquitted Appellant of the eighty-seven charges based 

on those images. N.T., 3/4/15, at 100–105; N.T., 3/6/15/ at 110.

Our review of the record confirms the trial court’s finding that 

Detective Webbe’s testimony, along with the video and photographic 

evidence, was sufficient to prove that Appellant possessed and distributed 

the child pornography through the use of his computer. Trial Court Opinion, 

1/19/16, at 33–34. Thus, Appellant’s sufficiency challenge is unconvincing.

In his fourth issue, Appellant attacks the trial court’s jury instruction 

on the definition of possession. We employ the following standard in 

assessing jury instructions:

[W]hen evaluating the propriety of jury instructions, this Court 

will look to the instructions as a whole, and not simply isolated 

portions, to determine if the instructions were improper. We 

further note that, it is an unquestionable maxim of law in this 

Commonwealth that a trial court has broad discretion in phrasing 

its instructions, and may choose its own wording so long as the 

law is clearly, adequately, and accurately presented to the jury 

for its consideration. Only where there is an abuse of discretion 

or an inaccurate statement of the law is there reversible error. 

Commonwealth v. Trippett, 932 A.2d 188, 200 (Pa. Super. 2007) 

(quoting Commonwealth v. Kerrigan, 920 A.2d 190, 198 (Pa. Super. 

2007) (internal citations, quotation marks, and brackets omitted)).

According to Appellant, the trial court’s definition of possession lacked 

the necessary “element of intent to exercise control over an item.” 
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Appellant’s Brief at 31. Moreover, Appellant challenges the trial court’s 

reliance on Commonwealth v. Diodoro, 970 A.2d 1100 (Pa. 2009), 

because that case “dealt with the viewing of child pornography, and 

whether that alone, could constitute control.” Appellant’s Brief at 31 

(emphasis in original). The Commonwealth responds that Appellant’s 

complaint lacks merit because the trial court “has broad discretion in 

phrasing its instructions to the jury,” and “did in fact consider and use some 

of the out-of-jurisdiction language proposed by the Appellant.” 

Commonwealth’s Brief at 24, n.6.

The record confirms that defense counsel proposed a jury instruction 

on the definition of possession from Massachusetts which included intent-toexercise-control language. N.T., 3/6/15, at 8. Notably, Appellant cites no 

binding authority—and we have found none—for the proposition that “intent 

to exercise control” is an element of possession under 18 Pa.C.S. § 6312(d). 

Rather, Appellant again cites to federal case law from other jurisdictions 

which is not binding on this Court. Appellant’s Brief at 29–31; Walker, 139 

A.3d at 230–231. 

The trial court rejected Appellant’s foreign definition as too narrow 

because it focused on the possession of a physical object rather than on the 

possession and dissemination of child pornography through a computer and 

the internet. N.T., 3/6/15, at 11–16, 76–78. Instead, the trial court relied 

on Diodoro, in which the Pennsylvania Supreme Court:
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examined the meaning of the word “control” in the context of 

possession or control over child pornography. 18 Pa.C.S.A. § 

6312(d). The [Diodoro] Court found that searching for and 

clicking on images and videos of child pornography constituted 

control under the statute, regardless of the “location” of these 

images on the internet.

Trial Court Opinion, 1/19/16, at 40 n.6 (citing Diodoro, 970 A.2d at 1107).7 

The trial court supports its ruling with the following rationale:

[A]fter considering the applicable statutes, the submissions and 

arguments of the parties, and the decision in Diodoro we 

provided instructions on each crime that gave effect to the plain 

language of the Child Pornography statutes, incorporated the 

holding and rationale of and definitions discussed in Diodoro, 

included the common meanings and definitions of terms used in 

the statutes, and recognized that a person can commit

Possession of Child [P]ornography by possessing, controlling, or 

intentionally viewing it and the crime of Disseminating Child 

Pornography by knowingly selling, distributing, delivering, 

disseminating, transferring, displaying or exhibiting child 

pornography to others, or possessing child pornography for the 

purpose of sale, distribution, delivery , dissemination, transfer, 

display, or exhibition to others. (N.T., 3/6/15, pp. 85–88).

Trial Court Opinion, 1/19/16, at 40–41.

____________________________________________

7

 We explained in Diodoro that the Pennsylvania Legislature knowingly 

included both “possession” and “control” in the statute. See Diodoro, 970 

A.2d at 1107 (“[T]he statute employs the disjunctive ‘knowingly possesses 

or controls,’ 18 Pa.C.S. § 6312(d)(1) (emphasis added). It is reasonable to 

conclude that the General Assembly employed the terms ‘possession’ and 

‘control’ in the disjunctive purposefully and that they were meant to have 

different applications.”).

Notably, the Diodoro Court expressly declined to consider “arguments 

made by both [the] appellant and the Commonwealth addressing whether 

such conduct [accessing and viewing child pornography over the internet] 

constitutes possession of child pornography under Section 6312(d).” 

Diodoro, 970 A.2d at 1105 n.6.
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Our review of the record reveals no abuse of the trial court’s discretion 

or error of law in the possession instruction. The trial court spent 

considerable time discussing Appellant’s proffered instruction with counsel. 

N.T., 3/6/15, at 8–17, 76–78. The trial court also explained its concern 

about Appellant’s definition of possession on the record: “I don’t think it’s 

sufficient and I think it would be misleading in a case involving computers, 

the cyber world, and all the technological matters that we heard about 

throughout this trial.” Id. at 8, 9. The trial court even provided Appellant 

an opportunity to edit the proposed definition by including the technological 

aspects of the case. Id. at 14, 16, 76–78. Then, the trial court instructed 

the jury on all of the elements of the three crimes charged. Id. at 84–90. 

Additionally, although the trial court was not required to use Appellant’s 

definition of possession in its jury charge, it did use some of the same 

language. Id. at 86–87. Moreover, defense counsel responded affirmatively 

when the trial court asked, “Counsel satisfied with the charge?” Id. at 100.8 

Upon review of the entire jury charge, and not simply isolated portions, we 

conclude that the trial court clearly, adequately, and accurately presented 

the law to the jury. Id. at 80–100.

____________________________________________

8

 Arguably, we could find this issue waived because Appellant did not object 

after the trial court concluded its charge. Bruce, 916 A.2d at 670 (stating 

that failure to offer a timely and specific objection results in waiver of the 

claim). However, the record fairly suggests that Appellant had a continuous 

objection to the trial court’s rejection of his proposed instruction. N.T., 

3/6/15, at 78.
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Appellant’s fifth assignment of error concerns the denial of his motion 

for individual voir dire. “A defendant has a right to an impartial jury 

pursuant to the Sixth and Fourteenth Amendments to the United States 

Constitution and Article 1, § 9 of the Pennsylvania Constitution.” 

Commonwealth v. Chmiel, 889 A.2d 501, 519 (Pa. 2005) (citations 

omitted); Commonwealth v. Wimbush, 951 A.2d 379, 383 (Pa. Super. 

2008). “The purpose of voir dire is to ensure the empaneling of a fair and 

impartial jury capable of following the instructions on the law as provided by 

the trial court.” Commonwealth v. Noel, 104 A.3d 1156, 1168 (Pa. 2014) 

(quoting Commonwealth v. Marrero, 687 A.2d 1102, 1107 (Pa. 1996) 

(citation omitted)). “The process of selecting a jury is committed to the 

sound discretion of the trial judge and will be reversed only where the record 

indicates an abuse of discretion, and the appellant carries the burden of 

showing that the jury was not impartial.” Chmiel, 889 A.2d at 519; Noel, 

104 A.3d at 1169.

Appellant complains that the trial court denied him a fair trial by 

conducting voir dire collectively: “[T]he social prejudices associated with 

child pornography in a public forum voir dire denies a defendant the ability 

in vetting individual jurors regarding social, religious and personal prejudices 

on the subject of child pornography[.]” Appellant’s Brief at 32 (emphasis 

omitted). According to the Commonwealth, Appellant did not properly 

preserve this issue, and therefore, it is waived. Commonwealth’s Brief at 
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26. Alternatively, the Commonwealth argues, Appellant “has not nor can he 

show that the jury was no[t] impartial. The Appellant was acquitted in the 

companion case, clearly showing the jury was not biased against him.” 

Commonwealth’s Brief at 26–27.

The trial court rejected Appellant’s argument for several reasons:

First, once again, [Appellant] was acquitted in the 

companion case. Given the acquittal, it is hard to imagine how 

the chosen form of jury selection prejudiced him or how 

[Appellant] might believe the jury was not impartial.

Second, procedurally, [Appellant] did not properly 

preserve this assertion for appellate review in that he did not 

sufficiently flesh out this issue by pointing to any specific defect 

in the jury selection process that was employed, any specific 

harm or prejudice he suffered, any specific question or 

(categories of question) counsel was unable to ask, any juror he 

would have questioned further if questioning was done 

individually, any juror whose “social, religious, or personal 

prejudice” would have resulted in disqualification of excusal for 

cause, or any point during the selection process which should 

have prompted us to switch to individual voir dire. Simply, 

[Appellant] does not specifically allege that the jury selected was 

not fair and impartial. Rather, he merely asserts that, in child 

pornography cases, individual jury selection should be utilized. 

. . .

Third, regardless of the belief of [Appellant] or his 

attorneys, individual voir dire is currently required by the 

Pennsylvania Rules of Criminal Procedure only in capital cases. 

In all other cases, the trial judge may select either individual voir 

dire or the list challenge system (group voir dire) to select a 

jury. Pa.R.Crim.P. 631(F)(1). In this proceeding, as this was 

not a capital case, or a case involving massive pre-trial publicity, 

we determined there was no need for individual voir dire. This 

decision is discretionary per Rule 631 and, as discussed, 

[Appellant] has failed to allege or demonstrate how we abused 

our discretion or how he was prejudiced by our choice.

Trial Court Opinion, 1/19/16, at 38–39 (citation to record omitted).
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Upon review, we find support in the certified record for the trial court’s 

ruling. N.T., 3/3/15, at 5–8, 14–15, 55–58. Moreover, we discern no abuse 

of discretion by the trial court in conducting voir dire collectively. Thus, we 

conclude that Appellant’s contrary assertion does not warrant relief. In 

reaching this conclusion, we adopt as our own the well-reasoned analysis of 

the trial court set forth above.

Appellant’s four remaining issues challenge his sentence as an abuse 

of the sentencing court’s discretion. Appellant’s Brief at 36. We reiterate 

that “[t]he right to appellate review of the discretionary aspects of a 

sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d 127, 132 

(Pa. Super. 2014). Rather, where an appellant challenges the discretionary 

aspects of a sentence, the appeal should be considered a petition for 

allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. 

Super. 2007). As we observed in Commonwealth v. Moury, 992 A.2d 162 

(Pa. Super. 2010):

An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying a 

four-part test:

[W]e conduct a four-part analysis to determine: (1) 

whether appellant has filed a timely notice of appeal, 

see Pa.R.A.P. 902 and 903; (2) whether the issue 

was properly preserved at sentencing or in a motion 

to reconsider and modify sentence, see Pa.R.Crim.P. 

[708]; (3) whether appellant’s brief has a fatal 

defect, Pa.R.A.P. 2119(f); and (4) whether there is a 

substantial question that the sentence appealed from 

is not appropriate under the Sentencing Code, 42 

Pa.C.S.A. § 9781(b).
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Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. 

Super. 2006)). With regard to the third requirement, we have explained:

[A]n appellant who challenges the discretionary aspects of a 

sentence in a criminal matter shall set forth in his brief a concise 

statement of the reasons relied upon for allowance of appeal 

with respect to the discretionary aspects of a sentence. Pa.R.A.P. 

2119(f). Such a statement must raise a substantial question, 

which we have described as a plausible argument that the

sentence is contrary to a specific provision of the Sentencing 

Code or to the fundamental norms underlying the sentencing 

process. Should a defendant fail to comply with these 

procedures, this Court is empowered to dismiss his appeal. See 

Commonwealth v. Penrod, 578 A.2d 486, 490 (Pa. Super. 

1990).

Commonwealth v. Bonds, 890 A.2d 414, 417 (Pa. Super. 2005) (internal 

quotation marks and case citation omitted); Commonwealth v. Mouzon, 

812 A.2d 617, 627 (Pa. 2002).

Herein, Appellant filed a timely notice of appeal, and he preserved 

sentencing issues in a post-sentence motion. Notice of Appeal, 10/14/15, at 

1; Motion, 6/24/15, at ¶ 24. However, Appellant’s Pa.R.A.P. 2119(f) 

statement is woefully deficient in that it simply lists his four sentencing 

issues, which differ in some instances from the issues raised in his postsentence motion. Appellant’s Brief at 8. Although Appellant has labeled the 

section of his argument addressing his sentencing challenges in an apparent 

attempt to comply, nowhere does he articulate the manner in which the 

sentence violates either a specific provision of the sentencing scheme set 

forth in the Sentencing Code or a particular fundamental norm underlying 
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the sentencing process. Appellant’s Brief at 35. Given this deficiency, we 

deny Appellant’s petition for allowance to appeal the discretionary aspects of 

his sentence.9 Penrod, 578 A.2d at 490.

Finally, we address the trial court’s designation of Appellant as a Tier 

III sexual offender under the Sex Offender Registration and Notification Act 

(“SORNA”), 42 Pa.C.S. §§ 9799.10–9799.41. N.T., 6/16/15, at 29. In light 

of the Supreme Court’s recent decision in Commonwealth v. LutzMorrison, 143 A.3d 891 (Pa. 2016), this ruling presents a non-waivable 

legality-of-sentence issue. According to the Lutz-Morrison Court, SORNA 

implicates the recidivist philosophy, requiring an action, a conviction, and a 

subsequent act to trigger lifetime registration for multiple offenses otherwise 

subject to a fifteen- or twenty-five-year registration period. Lutz-Morrison, 

143 A.3d at 895. Because Appellant is a first-time offender, we are 

constrained to vacate the lifetime registration portion of Appellant’s sentence 

and remand for re-sentencing under SORNA.

Convictions affirmed; judgment of sentence vacated in part; case 

remanded for re-sentencing. Jurisdiction relinquished.

____________________________________________

9

 Even if we overlooked Appellant’s defective Pa.R.A.P. 2119(f) statement, 

we would dispose of his sentencing challenges by adopting the well-reasoned 

analysis of the trial court. Trial Court Opinion, 1/19/16, at 42–46.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/29/2017