J-S36004-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANTHONY M. RUDINSKI 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1783 MDA 2018

Appeal from the Judgment of Sentence Entered September 13, 2016

In the Court of Common Pleas of Lycoming Court

Criminal Division at No: CR 2023-2013

BEFORE: PANELLA, P.J., SHOGAN, J., and PELLEGRINI, J.*

MEMORANDUM BY PANELLA, P.J.: FILED NOVEMBER 07, 2019

Anthony Rudinski appeals from the Judgment of Sentence Entered 

September 13, 2016.

1 Following a jury trial which ended on April 22, 2016, 

Rudinski was convicted of seventeen counts of sexual abuse of children2 and 

one count of criminal use of a communication facility.3 He was sentenced on 

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* Retired Senior Judge assigned to the Superior Court.

1 Rudinski was granted direct appeal rights nun pro tunc on October 1, 2018, 

by the PCRA Court. His notice of appeal was timely filed. There is a tortured 

history to the procedural steps taken which led to the Order of October 1, 

2018, however, for purposes of our review, the record indicates that the three 

issues raised by Rudinski in this appeal were properly preserved for our 

review. 

2 Count 1 was based on 18 Pa.C.S.A. § 6312(c) and Counts 2 through 17 were 

based on 18 Pa.C.S.A. § 6312(d).

3 18 Pa.C.S.A. § 7512(a). 
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September 13, 2016, to an aggregate sentence of seven to fifteen years of

incarceration with a consecutive period of probation for five years.

The facts are easily summarized. During routine surveillance by the 

Pennsylvania Office of Attorney General Child Predator Section, child 

pornography was traced to a computer in Rudinski’s home. Pursuant to a 

search warrant, a BitTorrent file sharing network and child pornography were 

found on Rudinski’s computer. Rudinski later admitted to knowing that the 

child pornography had been downloaded, but also stated that he had 

accidentally downloaded it. A video and multiple photographs of child 

pornography were recovered from the computer. 

The offense of sexual abuse of children is defined in 18 Pa.C.S.A. § 6312 

as follows:

(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.
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18 Pa.C.S.A. § 6312. With regard to Section 6312, the Commonwealth must 

prove the following three elements beyond a reasonable doubt:

there must be a depiction of an actual child engaged in a 

prohibited sexual act or a simulated sexual act; the child 

depicted must be under the age of eighteen (18); and the 

defendant must have knowingly possessed or controlled 

the depiction. Commonwealth v. Koehler, 914 A.2d 

427, 436 (Pa.Super.2006).

Commonwealth v. Diodoro, 932 A.2d 172, 173 (Pa. Super. 2007)(en banc). 

In order for the trier of fact to make a determination as to whether the 

child depicted is under the age of eighteen, expert testimony is permissible, 

however, a view of the video or photograph is often the best evidence. See, 

e.g., Commonwealth v. Robertson-Dewar, 829 A.2d 1207, 1213 (Pa. 

Super. 2003)(“Here, the trial judge, sitting as fact-finder, viewed all of the 

photographs and videos seized from Appellant's computer and determined 

that expert testimony was not necessary to assist him in determining the age 

of the persons depicted in the computer images.”). “[T]he outward physical 

appearance of an alleged minor may be considered by the trier of fact in 

judging the alleged minor's age.” 4 Summ. Pa. Jur. 2d Criminal Law § 11:64 

(2d ed.).

The other charge of which Rudinski was found guilty, which is not 

specifically relevant to the issues raised on appeal, is the offence of criminal 

use of a communication facility, which is defined as:

(a) Offense defined.--A person commits a felony of the 

third degree if that person uses a communication facility to 

commit, cause or facilitate the commission or the attempt 
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thereof of any crime which constitutes a felony under this 

title . . . . Every instance where the communication facility 

is utilized constitutes a separate offense under this section.

18 Pa.C.S.A. § 7512. 

In his first issue on appeal, Rudinski avers that the trial court erred when 

it admitted at trial the videos and photos depicting child pornography and 

permitted them to be shown to the jury. “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.” Commonwealth 

v. Sauers, 159 A.3d 1, 6 (Pa. Super. 2017) (citations omitted). Rudinski 

argues that the inflammatory nature of the videos and photographs 

outweighed their probative value, especially in light of his offered stipulation 

that the videos portrayed child pornography. In light of Rudinski’s challenge 

to the discretion of the trial court, we must evaluate the trial court’s actions 

with the following standard in mind:

When reviewing questions regarding the admissibility of 

evidence, our standard of review maintains the 

admissibility of evidence is solely within the discretion of 

the trial court and will be reversed only if the trial court 

has abused its discretion. An abuse of discretion is not 

merely an error of judgment, but is rather the overriding 

or 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. The comment to Rule 403 of the Pennsylvania 

Rules of Evidence defines “unfair prejudice” as “a

tendency to suggest decision on an improper basis

or to divert the jury's attention away from its duty of

weighing the evidence impartially.”
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Commonwealth v. Seilhamer, 862 A.2d 1263, 1270 (Pa. Super. 2004)

(emphasis in original; citations and quotations omitted).

The trial court rejected Rudinski’s motion in limine to prevent the

Commonwealth from showing the videos and photographs at trial:

After review of briefs and hearing oral argument, the

Defense motion in limine to exclude the photographs of the

pictures involved is DENIED. The Court believes that they

are the essence of the case, the elements of what the

Commonwealth is required to prove, and therefore need to

be produced. This is not like certain criminal cases where

blood is excluded from murder pictures because they were

not really elements of the crime, but here the Court

believes that it is necessary to introduce the elements of

the crime. The Court also believes that the photographs

would most likely go to any issues of intent that are present

in the case.

Order, 10/20/15.

Rudinski argues the Commonwealth did not need to present the videos

and photographs, as he was willing to stipulate that they were child

pornography. In fact, Rudinski only ever disputed that he intentionally

possessed the videos and photographs. Consequently, Rudinski asserts the

content of the videos and photographs was not highly probative of the factual

dispute at trial.

Rudinski acknowledges that the Commonwealth was not required to

accept the stipulation, but contends that, under the circumstances, the undue

prejudice of the evidence outweighed its probative value. Importantly, the 

issue is whether the videos and photographs were unfairly prejudicial. See 

Commonwealth v. Kouma, 53 A.3d 760, 770 (Pa. Super. 2012). The trial 
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court is not “required to sanitize the trial to eliminate all unpleasant facts from 

the jury's consideration where those facts are relevant to the issues at hand 

and form part of the history and natural development of the events and 

offenses for which the defendant is charged.” Commonwealth v. Hairston, 

84 A.3d 657, 666 (Pa. 2014) (citation omitted).

Here, the content of the videos, while indisputably shocking, was not 

likely to suggest the jury decide the case on an improper basis. The content 

of the videos, independent of the contested issue of Rudinski’s intent or 

knowledge of possession, did not inflame the jury’s passions against Rudinski. 

The record does not support a finding that the jury convicted Rudinski on an 

improper basis. Therefore, Rudinski is entitled to no relief on his first issue. 

Rudinski’s second issue centers on the dates the child pornography was 

downloaded to his computer. The Criminal Information filed against Rudinski 

listed the offense dates as between August 18, 2013 and September 19, 

2013.4 At trial, evidence was presented that the exact dates were September 

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th, 10th and 11th of 2013. Rudinski’s counsel raised a timely objection and 

contended that he had never been provided with the exact dates of the 

downloads. The court denied Rudinski’s request for a mistrial.

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4 The Criminal Information specifically alleged that Rudinski viewed, 

downloaded, or disseminated child pornography from August 18, 2013 

through September 19, 2013. 
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On appeal, Rudinski contends the court erred in denying a mistrial. It is 

well-settled that the review of a trial court's denial of a motion for a mistrial 

is limited to determining whether the trial court abused its 

discretion. Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa. 2011). 

“An abuse of discretion is not merely an error of judgment, but if in reaching

a conclusion the law is overridden or misapplied, or the judgment exercised is

manifestly unreasonable, or the result of partiality, prejudice, bias or illwill ... discretion is abused.” Commonwealth v. Wright, 961 A.2d 119, 142 

(Pa. 2008). 

A trial court may grant a mistrial only “where the incident upon which

the motion is based is of such a nature that its unavoidable effect is to deprive

the defendant of a fair trial by preventing the jury from weighing and

rendering a true verdict.” Wright, 961 A.2d at 142.

Rudinski does not assert that the Commonwealth failed to provide him, 

prior to trial, any of the videos or pictures used at trial. Rather, his argument 

focuses solely on the dates that some of the videos and pictures were 

downloaded. The trial court found that the combination of the notice of the 

offense dates provided in the Criminal Information and the providing of the 

actual videos and photographs which were going to be used at trial was 

sufficient notice to the defense. The trial court further found that the 

Commonwealth had not committed any discovery violation. 
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The trial court was within its discretion in finding that the lack of notice 

of these three exact dates was not prejudicial to the defense. Moreover, there 

was absolutely no finding that this was any type of intentional nondisclosure 

by the Commonwealth. The trial court, which was in the best position to assess 

the effect of the lack of pretrial notice of these three dates, was satisfied that 

sufficient notice had been provided, and that no requests for additional 

discovery had been made by the defense. We therefore find that no relief is 

warranted on this issue. 

Rudinski’s last issue involves an allegation of after-discovered evidence. 

The trial court had denied Rudinski’s post-sentence motion on February 9, 

2017, and no direct appeal was filed. The post-sentence motion, which was 

permitted as a late filing by the trial court, included allegations that Special 

Agent Robert Soop, who testified at trial,

5 had been under investigation at the 

same time by the Attorney General’s office for forwarding sexually explicit 

material. Post-Sentence Motion, 10/10/16 at ¶ 16. 

On July 11, 2017, trial counsel filed a Motion for a New Trial, again based 

upon information obtained after trial regarding the involvement of 

Commonwealth’s witnesses in the Attorney General’s investigation into what 

was then known in the news media as “Porngate.” Rudinski’s argument again 

concentrated on Special Agent Robert Soop. The trial court determined that 

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5 Agent Soop had prepared a summary report, which was used at trial, which 

listed images found on Rudinski’s hard drive.
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the Motion for a New Trial should be treated as a timely petition under the 

Post-Conviction Relief Act. Eventually, an amended PCRA Petition was filed, 

and the court held hearings. 

Ultimately, the PCRA court granted relief in the form of nunc pro tunc

direct appeal rights. This appeal is Rudinski’s nunc pro tunc appeal from his 

judgment of sentence. We therefore are reviewing the denial of his postsentence motion, not the PCRA proceedings.

Rudinski therefore argues the court erred in denying his post-sentence 

motion. Specifically, he contends the court erred in denying his request for a 

new trial pursuant to a claim of after-discovered evidence. In order to obtain 

relief based on after-discovered evidence, Rudinski was required to show that 

the evidence: 

(1) could not have been obtained prior to the conclusion of the 

trial by the exercise of reasonable diligence; (2) is not merely 

corroborative or cumulative; (3) will not be used solely to impeach 

the credibility of a witness; and (4) would likely result in a different 

verdict if a new trial were granted.

Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008) (citation omitted). 

Here, it is clear that the proposed evidence of Soop’s involvement in 

“Porngate” would have been used solely to impeach Soop’s credibility, with no 

other use reasonably expected. See Appellant’s Brief, at 23. No use of this 

evidence has been suggested by Rudinski other than for impeachment 

purposes.
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Nor does this case fall under the exception set forth in Commonwealth 

v. McCracken, 659 A.2d 541 (Pa. 1995). In McCracken, our Supreme Court 

recognized that new evidence which undermines key testimony from an 

essential Commonwealth witness should not properly be categorized as being 

used solely to impeach a witness. Rudinski has not established that Agent 

Soop was an essential Commonwealth witness. Nor has he even argued that 

Soop’s testimony was key to the Commonwealth’s case. 

Rudinski argues that the Porngate allegations provide a basis for 

establishing that he was targeted due to his visual disability. However, in 

support of this argument, Rudinski only highlights Porngate e-mails that 

ridiculed overweight women and abused children. These e-mails do not 

logically support an inference that the OAG agents targeted Rudinski based 

upon his visual disability. 

Even if this were not true, Rudinski has failed to establish that a different 

verdict was likely if the evidence had been presented to the jury. Rudinski has 

never denied that child pornography was found on his computer. The only 

dispute was whether he knowingly or intentionally possess the child 

pornography. We can discern no basis upon which to conclude that the 

Porngate evidence would have altered the jury’s verdict. For all these reasons, 

we find Rudinski’s last issue does not merit relief.

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/07/2019