J-S13003-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. SCOTT ANTHONY NANNI Appellant No. 1578 WDA 2014

Appeal from the Judgment of Sentence August 18, 201 4 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0013141-2013
BEFORE: LAZARUS, J., STABILE, J., and FITZGERALD, J

. * MEMORANDUM BY LAZARUS, J.: FILED MARCH 07, 2016 Scott Anthony Nanni appeals from his judgment of s entence, entered in the Court of Common Pleas of Allegheny County, f ollowing his conviction for 6 counts of sexual abuse of children – possessi on of child pornography. 1 After careful review, we affirm. On September 10, 2013, Donny Bryant notified the p olice department that a netbook computer he had purchased from Nanni contained images of young girls in various sexual acts. Based on that information, the police secured a search warrant for the residence where Na nni was staying in

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. § 6312(d)(1).J-S13003-16

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Sewickley. 2 When they entered the house, Nanni, who was weari ng women’s underwear, a bra and a wig, ran down a hall away from the officers where he stepped behind a computer to undress. The police read Nanni his Miranda 3 rights which he signed and he consented to speak w ith them. Nanni explained that he had an application on his c omputer that would pull pornography from the internet and, while that appli cation sometimes pulled child pornography, he would only view adult pornogr aphy. Nanni later admitted that he would sometimes, however, save the child pornography files on his computer. The age-range of the childr en in those files was 6-to14 years old. An officer testified that Nanni admi tted to wearing size 10 children’s underpants which he would masturbate int o while viewing the saved child pornography. At trial, the court admitted into evidence 5 image s and one video found on a hard drive from the Sewickley house. Of ficers were not able to testify with regard to which of the nine hard drive s found in the house had the images on it. At trial Nanni testified that he did not remember signing a Miranda waiver; he also denied admitting to possessing or viewing child pornography. N.T. Non-Jury Trial, 5/19/14, at 58, 60, 63. Rather, he

____________________________________________ 2 Nanni was visiting a friend at the Sewickley house at the time he was arrested. His main residence, however was in Granv ille, West Virginia, where he lived with his grandmother.

3 Miranda v. Arizona , 384 U.S. 436 (1966).J-S13003-16

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testified that the officers questioned him for seve ral hours, repeating “the same questions over and over,” id. at 59, and that the officers “misconstrued quite badly what [he] said.” Id. at 65. After trial, the court found Nanni guilty of all s ix counts of viewing/possessing child pornography and sentenced him to time served (339 days), to be followed by one year of house arr est and a five-year probationary tail. Nanni was also required to comp ly with the lifetime registration requirements under this Commonwealth’s Sexual Offender Registration and Notification Act (SORNA). 45 Nanni unsuccessfully challenged the weight of the evidence in post-sente nce motions. This timely appeal follows. On appeal, Nanni presents the following issues for our review: (1) Did the trial court abuse its discretion in denying Mr. Nanni’s repeated requests for new counsel and APD Hudak’s motion to withdraw when there were irreconc ilable differences between client and attorney?

____________________________________________ 4 See 42 Pa.C.S. § 9799.10-9799.41. SORNA, the successo r to Megan’s Law II, was enacted on December 20, 2011, and became ef fective on December 20, 2012. Because Nanni was convicted after the ef fective date of SORNA, he is subject to its provisions. See 42 Pa.C.S. § 9799.13(1).

5 Section 9799.14 of SORNA establishes a three-tiere d system of specifically enumerated offenses requiring registration for sexu al offenders for differing lengths of time. Id. Pursuant to section 9799.15(a)(1), a person convi cted of a Tier I offense must register for 15 years. A Tier II offender must register for 25 years, while a Tier III offender, l ike Nanni, must register for the remainder of his or her life. 42 Pa.C.S. § 97 99.15(a)(2), (a)(3).J-S13003-16

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(2) Were the guilty verdicts against the weight of the evidence because Bryant’s testimony was unreliable, the alle ged confession was unrecorded and unspecific, and there was overwhelming evidence that Mr. Nanni did not posses s child pornography? Nanni first complains that the court improperly re fused to permit Attorney Hudak to withdraw from his case, prior to trial, when he and his counsel had “irreconcilable differences that prohib ited [him] from getting adequate representation.” Appellant’s Brief, at 19 . Specifically, Nanni contends that he did not have enough time to discus s his case with Attorney Hudak or view his discovery. “A motion for change of counsel by a defendant for whom counsel has been appointed shall not be granted exc ept for substantial reasons.” Pa.R.Crim.P 122(C). To sati sfy this standard, a defendant must demonstrate he has an ir reconcilable difference with counsel that precludes counsel from representing him. Commonwealth v. Spotz , [] 756 A.2d 1139, 1150 (Pa. 2000) (citing Commonwealth v. Tyler , [] 360 A.2d 617, 619 (Pa. 1976)). The decision whether to appoint new co unsel lies within the trial court's sound discretion. Id. (citation omitted). Commonwealth v. Wright , 961 A.2d 119, 134 (Pa. 2008). In open court on the morning of his scheduled tria l, Nanni explained to the trial judge that, while he was incarcerated and awaiting trial on the instant charges, he “never had time, a chance to ma ke any challenges to the evidence of anything” and “ha[dn’t] had time to tal k to [Hudak or] . . . prepare for a trial.” N.T. Non-Jury Trial, 5/19/1 4, at 3. Counsel interjected that she had had four to five video conferences wit h Nanni prior to trial. Although Nanni admitted he did participate in these video conferences with Hudak, he claimed that he did not have his necessar y “paperwork” with himJ-S13003-16

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to adequately discuss his case. To allay his conce rns, the trial judge permitted Nanni to meet with Attorney Hudak in his holding cell and prepare for trial for at least three hours prior to the 2:0 1 p.m. scheduled start of trial. The court found that this time was sufficie nt to allow him to prepare for a rather straightforward case in which three Co mmonwealth witnesses were called to testify and Nanni was the only witne ss for the defense. Nanni relies upon Commonwealth v. Tyler , 360 A.2d 617 (Pa. 1976), to support his claim that counsel should hav e been removed due to irreconcilable differences. In Tyler , the defendant, charged with murder, requested that his court-appointed attorney be dism issed and that new counsel be appointed. The defendant cited irreconc ilable differences of opinion between himself and counsel as to the manne r in which his trial should be conducted. Counsel also acknowledged the existence of a difference of opinion, but advised the court that h e was precluded from explaining the nature of the differences due to the attorney-client privilege. The trial court denied the defendant’s request to a ppoint new counsel. As a result, the defendant chose to represent himself ra ther than permit appointed-counsel to represent him; the court order ed that counsel remain available for consultation and take proper and nece ssary steps on defendant’s behalf throughout the proceedings. Id. at 618. On appeal, our Supreme Court found that the trial court forced the defendant to either accept court-appointed counsel, or to represent himself. Accordingly, the Court concluded that this choice d id not “comport with theJ-S13003-16

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constitutional standards required to be met before a court may accept an alleged waiver of one’s constitutional right to rep resentation by counsel,” id. at 620, and reversed the defendant’s judgment of s entence and remanded the case for a new trial. Instantly, this case is distinguishable from the f acts of Tyler . While counsel did file a motion to withdraw from represen ting Nanni, citing “an irreconcilable breakdown in the attorney-client rel ationship . . . [which] has soured the [] relationship to the point where couns el of record can no longer, in good conscience, continue representing M r. Nanni in this case,” Motion to Withdraw, 5/12/14, at 1-2, counsel did no t renew this motion on the day of trial. In fact, she proceeded to repres ent Nanni effectively and without objection after the court permitted her to meet with her client for three hours prior to trial so that they could revie w paperwork and go over trial strategy. See Trial Court Opinion, 7/20/15, at 6 (trial judge opi ned, “[w]hatever dispute between [Nanni] and Ms. Hudak, it did not impede [Nanni’s] right to a fair trial and to effective co unsel.”); see also Commonwealth v. Spotz , 756 A.2d 1139 (Pa. 2000) ( W here defendant and counsel offer competing contentions as to readiness of defense counsel for trial, it is for trial court to decide whose portra yal of counsel’s preparedness is more accurate). The record supports the trial court’s conclusion t hat Nanni did not demonstrate that he had an irreconcilable differenc e with Attorney Hudak that precluded her from adequately representing him . At most, Nanni’sJ-S13003-16

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concerns consisted of wanting to spend more time wi th counsel to prepare for trial. See Commonwealth v. Floyd , 937 A.2d 494 (Pa. Super. 2007) (irreconcilable differences warranting appointment of new counsel do not exist where defendant merely alleges strained relat ionship with counsel, has difference of opinion in trial strategy, lacks conf idence in counsel’s ability, or where there is brevity of pretrial communications). We find that the court’s decision to deny Nanni’s request for a new attorney was not an abuse of discretion. Wright , supra . In his next issue on appeal, Nanni challenges the weight of the evidence to support his convictions for possessing child pornography. Specifically, he alleges that Bryant’s testimony wa s unreliable, Nanni’s own confession was unrecorded and unspecific, and there was overwhelming evidence that Nanni did not possess child pornograp hy. In Pennsylvania, the standard of review for an appe al challenging the weight of the evidence is well-settled. The finder of fact is the exclusive judge of the weight of the evidence and is free to believe all, part, or none of the evidence presented. Commonwealth v. Cruz , 919 A.2d 279, 281-82 (Pa. Super. 2007). Additionally, the finder of fac t determines the credibility of the witnesses. Id. In reaching its decision, it is the duty of the f inder of fact to reconcile inconsistent testimony and resolv e any inconsistencies. Commonwealth v. Manchas , 633 A.2d 618, 624 (Pa. Super. 1993).J-S13003-16

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The relief sought in a weight of the evidence chall enge is the award of a new trial. However, the Supreme Court of Pennsyl vania has held a new trial should only be granted if the finding was aga inst the weight of the evidence and is so contrary to the evidence that it shocks one’s sense of justice. Commonwealth v. Whitney , 512 A.2d 1152, 1155-56 (Pa. 1986). Where the trial court has ruled on the weight claim below, an appellate court’s role is not to consider the underlying ques tion of whether the verdict is against the weight of the evidence. Commonwealth v. Champney , 832 A.2d 403, 408 (Pa. 2003). Rather, appellate review is limited to whether the trial court palpably abused its discretion in rulin g on the weight claim. Id. The Pennsylvania Crimes Code defines the crime of p ossession of child pornography as follows, “any person who intentional ly views or knowingly possesses or controls any book, magazine, pamphlet, slide, photograph, film, videotape, computer depiction or other materi al 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)(1). Instantly, Nanni acknowledges in the argument secti on of his brief that the evidence that Bryant provided “was immaterial t o the six charges at issue.” Appellant’s Brief, at 26. In fact, Nanni’ s conviction was supported by evidence gathered during the execution of the searc h warrant and subsequent investigation of his computer, two cable d hard drives, as well as his own confession of having viewed child pornograp hy. While Bryant mayJ-S13003-16

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have alerted officers to the fact that Nanni was po tentially doing something illegal, the charges were brought solely based evid ence uncovered as a result of the subsequently secured search warrant, not upon anything Bryant told the police. We find that the trial court did not palpably abuse its discretion in ruling on Nanni’s weight claim. Champney , supra . Officers uncovered more than 1,700 child pornography videos and 490 fi les containing verified images of known child victims on Nanni’s desktop co mputer. The computer contained two user accounts. One of the accounts, named “NVZ,” was logged on at the time of the search and was passwor d-protected. Nanni admitted that he used the name “NVZ” on his compute r and was able to type the password into the computer to access that account. Once they were signed on, Nanni directed the officers to a fo lder entitled “x” that contained child pornography. Under the “NVZ” profi le, officers also uncovered a West Virginia driver’s license in Nanni ’s name, Comcast cable bills in Nanni’s name at the West Virginia address, a copy of Nanni’s resume, and a certification for a computer operating system class in Nanni’s name. 6 Although Nanni argues that he never confessed to po ssessing or viewing child pornography, the evidence presented b y the Commonwealth

____________________________________________ 6 A computer forensics examiner testified that the p erson who set up the computer and cabled hard drives, which contained th e subject images and videos, was more technically sophisticated than an average computer user. Nanni had told officers that he fixes computers for a living.J-S13003-16

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contradicts his position. Officer Roberts testifie d that Nanni admitted to having viewed child pornography that was stored in folders on his computer, that he masturbated to the pornography in size-10 c hildren’s underwear and that he saved pornographic images of children aged 6-14 on his computer. Because it was the trial judge’s duty to reconcile inconsistent testimony and resolve any such inconsistencies, Manchas , supra , we conclude that the trial court did not abuse its discretion in conclud ing that the verdict was not against the weight of the evidence. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/7/2016