J-S68011-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ANTHONY PETER OSCHE,

Appellant No. 1731 WDA 2015

Appeal from the Judgment of Sentence October 5, 2015

In the Court of Common Pleas of Butler County

Criminal Division at No(s): CP-10-CR-0002166-2013

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

MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 18, 2016

Appellant, Anthony Peter Osche, appeals from the judgment of 

sentence entered on October 5, 2015, in the Butler County Court of Common 

Pleas. We affirm.

The record reflects that in August of 2013, Special Agent Duane Tabak 

(“Agent Tabak”) of the Pennsylvania Office of Attorney General, Child 

Predator Section, was engaged in investigating peer-to-peer file sharing of 

suspected child pornography.1 N.T. Trial, 2/9/15, at 106-109. This 

____________________________________________

*

 Retired Senior Judge assigned to the Superior Court.

1 Child pornography is defined as “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[.]” 18 Pa.C.S. § 6312(d).
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investigation uncovered internet distribution of suspected child pornography, 

and it led Agent Tabak to secure a court order to uncover the internet 

subscriber’s identity, physical address, and internet protocol (“IP”) address. 

Id. at 109-118. Once Agent Tabak learned the name and physical address, 

he obtained a search warrant. Id. at 119. When Agent Tabak executed the 

search warrant, there were several people present at the house including 

Appellant, Appellant’s father, Appellant’s step-mother, Appellant’s stepsister, and Appellant’s grandparents. Id. at 120. The Agents located a 

computer and external hard drive in Appellant’s bedroom. Id. at 121. A 

forensic examination of those devices uncovered pictures and videos of 

suspected child pornography and evidence that the computer had been used 

to disseminate the files containing the suspected child pornography. Id. at 

125. The investigation uncovered more than 1,300 video files. Id. at 127. 

All of the suspected child pornography was discovered on computer devices 

located solely in Appellant’s bedroom. Id. at 137. 

Appellant was arrested and advised of his rights pursuant to Miranda 

v. Arizona, 384 U.S. 436 (1966). N.T., Trial, 2/9/15, at 138. Appellant 

then signed a form memorializing that he understood his rights. Id. After 

signing the form, Appellant agreed to speak to Agent Tabak, and he 

admitted to viewing child pornography. Id. at 138-139. Additionally, 

Appellant’s computer revealed the file-sharing program through which Agent 

Tabak initially obtained the shared images of child pornography. Id. at 140.
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Appellant was charged with five counts of distribution of child 

pornography, thirty counts of possessing child pornography, and one count 

of criminal use of a communication facility.2 On January 29, 2014, Appellant 

filed a motion for an extension of time in which to file an omnibus pretrial 

motion. On January 30, 2014, the trial court granted Appellant’s motion and 

provided Appellant an additional thirty days in which to file a timely omnibus 

motion. Despite this extension of time, Appellant failed to file an omnibus 

motion.

The case was scheduled for trial but was continued several times. On 

February 4, 2015, Appellant filed a motion in limine. In this motion, 

Appellant sought to exclude, inter alia, his confession. The trial court 

scheduled a hearing on the motion in limine, and following the hearing, the 

court denied Appellant’s request to exclude his confession. The court 

concluded that the motion to suppress was untimely as it should have been 

filed in an omnibus motion. Order, 2/9/15. 

A two-day jury trial began on February 9, 2015. At trial, Appellant 

stipulated that the images and video files recovered from the computer

____________________________________________

2 We note that Appellant was charged under a prior version of 18 Pa.C.S. § 

6312 with committing the crimes of sexual abuse of children, distribution of 

child pornography (18 Pa.C.S. § 6312(c)(1)), and sexual abuse of children, 

possessing child pornography (18 Pa.C.S. § 6312(d)(1)). On January 1, 

2014, 18 Pa.C.S. § 6312 was amended, and 18 Pa.C.S. § 6312(c)(1) and 18 

Pa.C.S. § 6312(d)(1) were renumbered as 18 Pa.C.S. § 6312(c) and 18 

Pa.C.S. § 6312 (d) respectively, without changes to the language. 
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seized at his house were child pornography. N.T. Trial, 2/9/15, at 42. At 

the close of the Commonwealth’s case, Appellant moved for a judgment of 

acquittal. Id. at 185. Counsel for Appellant argued that there was 

insufficient evidence to establish that the computer devices upon which the 

child pornography was found belonged to Appellant. Id. at 186. The trial 

court denied Appellant’s motion. Id. at 187. Appellant also objected to the 

jury being permitted to take still photographs to the jury room during 

deliberations. Id. at 195. These photographs were of scenes from the 

videos depicting children engaged in sexual activity. Id. The trial court 

overruled Appellant’s objection and allowed the jury to take the still images 

to the jury room; however, the trial court noted that it would provide a 

limiting instruction. N.T. Trial, 2/10/15, at 2.

Following deliberations, the jury found Appellant guilty of all thirty-six 

counts. N.T. Trial, 2/10/15, at 35-36. On October 5, 2015, Appellant was 

adjudged to be a sexually violent predator. N.T. Sentencing, 10/5/15, at 3. 

The trial court applied the mandatory minimum sentence of twenty-five 

years for recidivist sexual offenders under 42 Pa.C.S. § 9718.2, as Appellant 

had a prior conviction for violating 18 Pa.C.S. § 6312(d)(1) (possessing child 

pornography), in 2009.3 Id. at 6. The trial court then sentenced Appellant 

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3 18 Pa.C.S. § 6312(d)(1), now 18 Pa.C.S. § 6312(d), is an enumerated 

offense under 42 Pa.C.S.A. § 9799.14 for purposes of the mandatory 

recidivist sentencing provisions in 42 Pa.C.S. § 9718.2. 
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to thirty-five concurrent terms of twenty-five to fifty years of incarceration at 

counts one through thirty-five. On count thirty-six, criminal use of a 

communication facility, the trial court imposed no further penalty. Id. at 7. 

This resulted in an aggregate sentence of twenty-five to fifty years of 

incarceration.

On October 30, 2015, Appellant filed an appeal to this Court. Both the 

trial court and Appellant have complied with Pa.R.A.P. 1925. In his appeal, 

Appellant raises three issues for this Court’s consideration:

I. Whether the trial court erred in denying Appellant’s motion 

in limine and allowing Appellant’s confession to be 

introduced despite the confession not being voluntary and 

being elicited as part of a plea negotiation initiated by an 

agent of the Attorney General’s Office?

II. Whether the trial court erred by permitting still 

photographs of the alleged children to be introduced and 

provided to the jury despite a stipulation by the defense as 

to the nature and content of the photos?

III. Whether 42 Pa.C.S. § 9718.2, which provides for a 

mandatory 25 year sentence upon a second conviction for 

an offense under [42 Pa.C.S.] § 9799.14, is 

unconstitutional and violates the Eigth [sic] Amendment 

against cruel and unusual punishment?

Appellant’s Brief at 16 (full capitalization omitted). 

In his first issue, Appellant asserts that the trial court erred in denying 

his motion in limine wherein he sought to suppress his confession. We point 

out that the admissibility of evidence is within the sound discretion of the 

trial court, and we will not reverse a trial court’s decision concerning 
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admissibility of evidence absent an abuse of the trial court’s discretion. 

Commonwealth v. Estepp, 17 A.3d 939, 945 (Pa. Super. 2011). 

Here, however, Appellant did not file an omnibus motion to suppress 

under Pa.R.Crim.P. 578. Rather, after the time had passed to file an 

omnibus motion, Appellant sought to suppress his confession through a 

motion in limine. 

Our Rules of Criminal Procedure provide as follows:

Unless the opportunity did not previously exist, or the interests 

of justice otherwise require, such motion shall be made only 

after a case has been returned to court and shall be contained in 

the omnibus pretrial motion set forth in Rule 578. If timely 

motion is not made hereunder, the issue of suppression of such 

evidence shall be deemed to be waived.

Pa.R.Crim.P. 581(B). A criminal defendant has thirty days from the date of 

his arraignment to file a timely omnibus pretrial motion. Pa.R.Crim.P. 

579(A). However, as noted, the trial court may consider an untimely 

suppression motion if “the opportunity did not previously exist, or the 

interests of justice otherwise require[.]” Pa.R.Crim.P. 581(B). The 

determination of “[w]hether the opportunity did not previously exist or the 

interests of justice otherwise require is a matter for the discretion of the trial 

judge.” Commonwealth v. Long, 753 A.2d 272, 279 (Pa. Super. 2000).

As noted by the trial court in its opinion:

In the case at hand, arraignment was held on December 31, 

2013. On January 2, 2014, defense counsel filed an Informal 

Request for Discovery. The Commonwealth provided discovery 

on January 22, 2014. On January 29, 2014, defense counsel filed 

a Motion for Extension of Time to File Omnibus Pre-Trial Motion. 
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On January 30, 2014, the court granted the motion and gave the 

defense thirty (30) additional days to file an omnibus pretrial 

motion. Defense counsel never filed an omnibus pretrial motion.

Trial Court Opinion, 2/3/16, at 2. Rather, Appellant waited until five days 

before trial to file a motion in limine seeking to suppress his confession. 

There is no indication in that motion that there was any reason for the delay, 

and we discern no abuse of discretion in the trial court’s denial of Appellant’s 

untimely motion to suppress. Accordingly, Appellant’s claim fails.

Assuming, arguendo, that Appellant had properly filed a motion to 

suppress and the trial court denied that motion, we would still conclude that 

no relief is due. 

In reviewing a ruling on a suppression motion, our standard of 

review is whether the factual findings and the legal conclusions 

drawn therefrom are supported by the evidence. We are bound 

by the factual findings of the suppression court supported by the 

record, but we are not bound by the suppression court’s legal 

rulings, which we review de novo. Further, the reviewing court 

may consider only the Commonwealth’s evidence and so much of 

the evidence for the defense as remains uncontradicted when 

read in the context of the entire record.

Commonwealth v. Irvin, 134 A.3d 67, 71 (Pa. Super. 2016) (citations 

omitted). Moreover, our scope of review from a suppression ruling is limited 

to the evidentiary record that was created at the suppression hearing. In re 

L.J., 79 A.3d 1073, 1086 (Pa. 2013).

Appellant argues that his confession should have been suppressed 

because it was not voluntary and was obtained during plea negotiations. 

Appellant’s Brief at 27. We disagree.
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Despite Appellant’s suppression motion being raised improperly in a 

motion in limine, the trial court did hear argument and take testimony on 

the motion. N.T. Trial, 2/9/14, at 11-80. The trial court viewed the video of 

the confession and Agent Tabak’s interview with Appellant. Id. As noted 

above, after Appellant was arrested, he was apprised of his rights and signed 

a form indicating that he understood them. Id. at 26-30. Appellant then 

proceeded to speak with Agent Tabak and admitted possessing child 

pornography. Id. at 28-30, 39. Agent Tabak testified that there was no 

plea discussion, no promises made, and no representation made to Appellant 

that the agent was an attorney. Id. at 26-30. The trial court ultimately 

denied Appellant’s motion in limine, albeit on grounds that it was an 

untimely suppression motion. Id. at 78. Nevertheless, if Appellant had filed 

a timely motion to suppress his confession, and the trial court had denied it 

based on the record compiled during the motion in limine hearing, there was 

ample evidence upon which the trial court could have relied in denying a 

motion to suppress, and we would conclude that there was no abuse of 

discretion.

In his second issue, Appellant argues that the trial court erred in 

allowing the jury to take still photographs depicting scenes of child 

pornography from the video files into the jury room during deliberations over 

Appellant’s objection. The trial court overruled the objection and concluded 

that it was within its discretion to allow the jury to have those photos, the 
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photos were not cumulative, and the jury was instructed not to let the 

photos “stir up your emotions to prejudice [Appellant].” Trial Court Opinion, 

2/3/16, at 2. 

We note that the determination of “[w]hether an exhibit should be 

allowed to go out with the jury during its deliberation is within the sound 

discretion of the trial judge.” Commonwealth v. Barnett, 50 A.3d 176, 

194 (Pa. Super. 2012); Pa.R.Crim.P. 646(A). Rule 646 does not prohibit the 

jury from having photo exhibits during deliberation. Therefore, we are not 

confronted with a violation of the rule; instead, we are faced with a 

discretionary ruling. Compare Commonwealth v. Terry, 462 A.2d 676, 

679 (Pa. 1983) (rejecting the contention that a violation of former 

Pa.R.Crim.P. 1114, renumbered Pa.R.Crim.P. 646, can be harmless error) 

(emphasis added). 

Because there was a stipulation as to the contents of the video files 

and still photos and the fact that Appellant conceded those images 

constituted child pornography, the utility of the jury’s retention of the 

photographs is questionable. Nevertheless, after careful review, we 

conclude that any abuse of discretion in allowing the jurors to retain the 

photographs during deliberation was harmless. As our Supreme Court has 

stated, “The harmless error doctrine, as adopted in Pennsylvania, reflects 

the reality that the accused is entitled to a fair trial, not a perfect trial.” 
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Commonwealth v. Hairston, 84 A.3d 657, 671 (Pa. 2014) (citation 

omitted). 

Harmless error exists if the record demonstrates either: (1) the 

error did not prejudice the defendant or the prejudice was de 

minimis; or (2) the erroneously admitted evidence was merely

cumulative of other untainted evidence which was substantially 

similar to the erroneously admitted evidence; or (3) the 

properly admitted and uncontradicted evidence of guilt was so 

overwhelming and the prejudicial effect of the error was so 

insignificant by comparison that the error could not have 

contributed to the verdict.

Id. at 671-672 (citation and quotation marks omitted).

As noted above, Appellant stipulated that the files found on the 

computer constituted child pornography. N.T. Trial, 2/9/15, at 42. We are 

constrained to point out that if an image is, by definition, child pornography, 

an element of the crimes charged was established.4 In other words, there 

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4 Distribution and possession of child pornography are defined in the Crimes 

Code 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 

(Footnote Continued Next Page)
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was nothing else the Commonwealth was required to prove in order to 

establish that the images were depictions of children, under the age of 

eighteen years, engaged in a prohibited sexual act or in the simulation of 

such act, and therefore, child pornography. 18 Pa.C.S. § 6312(c) and (d). 

The Commonwealth had to prove only that Appellant knowingly possessed 

and/or distributed the prohibited images. Id. Our conclusion is supported 

by the fact that Appellant’s sole argument with respect to the elements of 

the crimes was that the Commonwealth failed to connect Appellant to the 

pornographic images of children. N.T. Trial, 2/9/15, at 186. Additionally, 

we point out that the still images were immaterial as to grading of the 

crimes because Appellant was a repeat offender under 42 Pa.C.S. §9718.2 

and subject to a mandatory minimum of twenty-five years at each count of 

possessing or disseminating child pornography.5 Thus, we are convinced 

that any error was harmless.

(Footnote Continued) _______________________

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

an offense.

18 Pa.C.S. § 6312(c) and (d).

5 We note that the images in the still photographs could be relevant as to 

gradation of an offense if Appellant were a first-time offender. See 18 

Pa.C.S. § 6312(d.1)(3) (“When a person commits an offense graded under 

paragraph (1) or (2)(i) and indecent contact with the child as defined in 

section 3101 (relating to definitions) is depicted, the grading of the offense 

shall be one grade higher than the grade specified in paragraph (1) or 

(2)(i).”). However, because Appellant is a repeat offender and subject to a 

twenty-five-year mandatory minimum sentence, the increase in gradation of 

(Footnote Continued Next Page)
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In his third issue, Appellant argues 42 Pa.C.S. § 9718.2, which 

provides for a mandatory twenty-five-year sentence for a second conviction 

for an offense enumerated in 42 Pa.C.S. § 9799.14, is unconstitutional as 

cruel and unusual punishment prohibited by the Eighth Amendment to the 

United States Constitution. Appellant’s Brief at 36. We conclude that this 

claim is meritless.

In Commonwealth v. Baker, 78 A.3d 1044 (Pa. 2013), the 

Pennsylvania Supreme Court addressed the constitutionality of 42 Pa.C.S. § 

9718.2, and the application of a twenty-five-year mandatory minimum for a 

second conviction of possessing child pornography. The Supreme Court 

began its analysis by stating: “The Eighth Amendment does not require strict 

proportionality between crime and sentence. Rather, it forbids only extreme 

sentences which are grossly disproportionate to the crime.” Id. at 1047. 

In Commonwealth v. Spells, 417 Pa. Super. 233, 612 

A.2d 458, 462 (1992) (en banc), the Superior Court applied the 

three-prong test for Eighth Amendment proportionality review 

set forth by the United States Supreme Court in Solem v. Helm, 

463 U.S. 277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), and 

determined that a five-year mandatory minimum sentence for 

offenses committed with a firearm does not offend the 

Pennsylvania constitutional prohibition against cruel 

punishments. The Spells court observed that the three-prong 

Solem proportionality test examines: “(i) the gravity of the 

offense and the harshness of the penalty; (ii) the sentences 

imposed on other criminals in the same jurisdiction; and (iii) the 

sentences imposed for commission of the same crime in other 

(Footnote Continued) _______________________

the offenses for depictions of indecent contact noted in 18 Pa.C.S. § 

6312(d.1)(3) is inapplicable.
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jurisdictions.” Spells, 612 A.2d at 462 (quoting Solem, 463 U.S. 

at 292, 103 S.Ct. 3001).

Id.

Just as in Baker, Appellant argues that he only possessed the videos, 

and he did not personally touch a child or produce the videos. Appellant’s 

Brief at 39. The Baker Court addressed this same “minimizing” argument 

as follows: 

After careful reflection, we agree [with the 

Commonwealth] that Appellant’s crime is much graver than the 

simple possession of so-called “dirty pictures” where there is no 

direct victim. Images of child pornography are images of child 

sexual abuse and exploitation; each image represents a 

victimized child, and there can be no dispute that those who 

exploit and abuse children commit very grave offenses. The 

essence of Appellant’s argument with respect to gross 

disproportionality is that because he himself did not engage in 

any sexual abuse or exploitation of children, his crime does not 

warrant a 25–year mandatory minimum sentence, and the 25–

year sentence of imprisonment imposed raises an inference of 

gross disproportionality when compared to his crime. See 

Appellant’s Brief at 11–12 (“What Baker did was possess the 

images. And for twice being convicted of this simple possession 

of these prohibited images, he was sentenced to a mandatory 

minimum of 25 years in prison.”)

We disagree that Appellant’s offense is a simple, nonserious, possessory offense. It bears repeating here that 

Appellant was sentenced under a recidivist sentencing scheme. 

The fact that Appellant is a repeat offender certainly goes to the 

gravity of his instant offense. Equally importantly, we cannot 

view Appellant’s crimes as he suggests, in a manner that 

detaches them from the devastating victimization that child 

pornography produces. Appellant’s participation in the criminal 

subculture of viewing images of child sexual abuse for personal 

gratification is part and parcel of that victimization. Appellant’s 

crime is his continued participation as an enabler of sexual 

crimes against children via his status as a possessor of child 

pornography. Although Appellant did not personally commit the 
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underlying sexual abuse, he was certainly a willing voyeuristic 

participant in its commission after the fact, and it is his demand 

to possess images of child sexual abuse which permits and, to an 

extent, causes, the production of child pornography. It is 

unacceptably inaccurate to characterize or label Appellant’s 

crime as the simple possession of “dirty pictures” or the use of 

an outlaw product. His crime is more accurately understood as 

secondary or indirect participation in the sexual abuse and 

exploitation of innocent children for personal gratification. That is 

a very serious and grave offense. ...

The gravity of the offense, of course, must be compared to 

the punishment imposed in order to determine whether an 

inference of gross disproportionality is raised. The sentence here 

is 25 to 50 years’ imprisonment, imposed on May 12, 2009, with 

credit for time-served from March 15, 2007. Thus, Appellant, 

who was thirty-three years of age on the date of sentencing, will 

be fifty-six years of age at the expiration of his minimum term of 

imprisonment, and eighty-one years of age at the expiration of 

his maximum sentence. This is an indeterminate sentence of 

years with the possibility of parole at some point following 

expiration of the mandatory minimum sentence. While clearly a 

lengthy sentence, presuming Appellant will experience an 

average longevity, the sentence here is not tantamount to a life 

sentence without the possibility of parole which the High Court 

struck down in Solem, supra, as grossly disproportionate to the 

recidivist non-violent offense of passing a bad check in the 

amount of $100.

In sum, we determine that a threshold comparison of the 

gravity of a second conviction of possessing and viewing child 

pornography against the imposition of a mandatory sentence of 

at least 25 years’ imprisonment does not lead to an inference of 

gross disproportionality. Thus, we need not reach the second 

and third prongs of the test for proportionality review under the 

Eighth Amendment, and accordingly, we affirm.

Baker, 78 A.3d at 1051-1052 (internal footnote and some citations 

omitted).

The Baker decision is directly applicable to the case at bar. As 

discussed, Appellant was a repeat offender under 42 Pa.C.S. § 9799.14 and 
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subject to the mandatory twenty-five-year minimum sentence under 42 

Pa.C.S. § 9718.2. While Appellant may not have physically touched the 

children in the videos or produced the videos himself, those facts do not 

minimize the gravity of his crimes. Baker, 78 A.3d at 1052. Moreover, 

Appellant was twenty-five years old when he was sentenced. Just as in 

Baker, Appellant was sentenced to an aggregate term of twenty-five to fifty 

years of incarceration and will be eligible for parole at the expiration of his 

minimum sentence when he is fifty years old.6 As set forth above, the 

Supreme Court concluded that, under similar circumstances, the recidivist 

sentencing statute, 42 Pa.C.S. § 9718.2, is not grossly disproportional to the 

crimes charged. Because we are bound by decisions of our Supreme Court,7

we conclude that Appellant is entitled to no relief on his challenge to the 

constitutionality of 42 Pa.C.S. § 9718.2. See Commonwealth v. ColonPlaza, 136 A.3d 521, 532 (Pa. Super. 2016) (noting that Baker is binding 

upon this Court, and rejecting an appellant’s challenge to the 

constitutionality of 42 Pa.C.S. § 9718.2 based on gross disproportionality). 

____________________________________________

6 We note also that Appellant may be eligible for parole before he is fiftyyears old because he received credit for time served. N.T., Sentencing, 

10/5/15, at 7.

7 See Commonwealth v. Volk, 138 A.3d 659, 663 (Pa. Super. 2016) 

(quoting Commonwealth v. Friday, 90 A.2d 856, 859 (Pa. Super. 1952) 

(“Superior Court is bound by the decisions of the Supreme Court of 

Pennsylvania.”)).
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For the reasons set forth above, we discern no basis upon which to 

disturb Appellant’s judgment of sentence. Accordingly, the judgment of 

sentence entered on October 5, 2015, is affirmed.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/18/2016