J-S94014-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RICHARD EUGENE MOYER, JR.

Appellant No. 742 MDA 2016

Appeal from the Judgment of Sentence March 4, 2016

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0004588-2014

BEFORE: LAZARUS, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.: FILED MARCH 01, 2017

Richard Eugene Moyer, Jr., appeals from the judgment of sentence 

entered in the Court of Common Pleas of Lancaster County after a jury 

convicted him of fifteen counts of possession of child pornography1and one 

count each of distribution of child pornography2and criminal use of a 

communication facility.3 Upon careful review, we affirm Moyer’s convictions 

and amend his sentencing and SORNA registration orders.

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. § 6312(d).

2 18 Pa.C.S.A. § 6312(c).

3 18 Pa.C.S.A. § 7512.
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In May 2014, Special Agent Daniel Hasenauer of the Pennsylvania 

Office of Attorney General conducted an internet-based investigation of child 

exploitation in which he attempted to locate computer users who had 

downloaded and/or distributed child pornography. During the course of this 

investigation, Agent Hasenauer made a direct connection with Moyer’s 

computer and downloaded a file containing child pornography. As a result, 

authorities obtained a search warrant to search Moyer’s home for child 

pornography. Armed with the warrant, officials seized Moyer’s computer. A 

forensic examination revealed images Hasenauer believed to be child 

pornography, as they had graphic titles indicating pornographic depiction of 

“preteens” between the ages of 3 and 12. 

Moyer, who resided in the basement of the residence belonging to his 

parents, was present during the execution of the warrant and agreed to 

speak with authorities. At first, Moyer denied that there was child 

pornography present on his computer. However, he subsequently told 

agents that he occasionally came across it when downloading files, but he 

always deleted it immediately. He also admitted using the search term 

“teen” to “get the files that [he] like[s] to see[.]” Trial Exhibit 10-A, 

Transcript of Moyer Interview, at 12. 

After the interview was concluded, Moyer was arrested. On the drive 

to the police station, Moyer told Agent Hasenauer that “he was targeting 

[the] 13, 14, 15-year old age group” and that it was not illegal to download 

child pornography as long as he deleted it. N.T. Trial, 12/2/15, at 138. 
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At trial, Special Agent David Middendorf, an expert in forensic 

computer analysis, testified that, on scene at Moyer’s residence, he initially 

determined that Moyer’s computer contained at least 13 images and one 

video of apparent child pornography. He later examined the computer and 

found it contained 17 images and three videos, which had been deleted and 

were in the computer’s recycling bin. 

Moyer testified and stated that he was in the business of refurbishing 

computers and had purchased this particular computer at a yard sale; he 

had added a second hard drive that he had purchased years before that. He 

claimed that there was a “mix of adult and child pornography” on the hard 

drive when he purchased it, but that he had deleted all of it. N.T. Trial, 

12/3/15, at 216. He further testified that he had subsequently “stumbled 

across” another pornographic file, which led to the discovery of additional 

files, all of which he claimed to have deleted. Id. at 220. Moyer claims he 

never intentionally made any of the files available for sharing on Shareaza, 

the file-sharing network he utilized.

On December 3, 2015, a jury found Moyer guilty of the above charges. 

On March 4, 2016, the court sentenced him to an aggregate term of five to 

15 years’ imprisonment. Moyer was also ordered to register as a sex 

offender for life pursuant to the Sex Offender Registration and Notification 
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Act (“SORNA”).4 Moyer’s post-sentence motions were denied. On May 6, 

2016, he filed a timely notice of appeal to this Court, followed by a courtordered concise statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(b).

On appeal, Moyer raises the following issues for our review:

1. Was the evidence presented by the Commonwealth 

insufficient to sustain [Moyer’s] conviction[s] for [c]ounts 2, 8, 

9, 11, and 16?

2. Were the sentences imposed on [c]ounts 1 through 7, of two 

and one-half to eight years[’] incarceration, illegal, as the 

statutory maximum sentence for a third[-]degree felony is seven 

years’ incarceration?

3. Where [Moyer] was convicted on the same date of one count 

of distribution of child pornography . . . and fifteen counts of 

possession of child pornography . . . and all offenses were 

docketed to the same information number, should he have been 

sentenced to 25 years of sex[-]offender registration pursuant to 

42 Pa.C.S. §§ 9799.14 and 9799.15, rather than lifetime 

registration?

Brief of Appellant, at 6. 

Moyer challenges the sufficiency of the evidence as to five of his 

convictions. We are guided by the following standard of review when 

presented with a challenge to the sufficiency of the evidence:

As a general matter, our standard of review of sufficiency claims 

requires that we evaluate the record in the light most favorable 

to the verdict winner giving the prosecution the benefit of all 

reasonable inferences to be drawn from the evidence. Evidence 

will be deemed sufficient to support the verdict when it 

____________________________________________

4 42 Pa.C.S.A. §§ 9799.10-9799.41.
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establishes each material element of the crime charged and the 

commission thereof by the accused, beyond a reasonable doubt. 

Nevertheless, the Commonwealth need not establish guilt to a 

mathematical certainty. Any doubt about the defendant’s guilt is 

to be resolved by the fact finder unless the evidence is so weak 

and inconclusive that, as a matter of law, no probability of fact 

can be drawn from the combined circumstances. 

The Commonwealth may sustain its burden by means of wholly 

circumstantial evidence. Accordingly, the fact that the evidence 

establishing a defendant’s participation in a crime is 

circumstantial does not preclude a conviction where the evidence 

coupled with the reasonable inferences drawn therefrom 

overcomes the presumption of innocence. Significantly, we may 

not substitute our judgment for that of the fact finder; thus, so 

long as the evidence adduced, accepted in the light most 

favorable to the Commonwealth, demonstrates the respective 

elements of a defendant’s crimes beyond a reasonable doubt, 

the appellant’s convictions will be upheld. 

Commonwealth v. Franklin, 69 A.3d 719, 722–23 (Pa. Super. 2013), 

quoting Commonwealth v. Pettyjohn, 64 A.3d 1072 (Pa. Super. 2013) 

(citations and quotation marks omitted).

Moyer was convicted under section 6312 of the Crimes Code, which 

provides that “[a]ny 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.” 18 Pa.C.S.A. § 6312. 

Moyer first challenges his conviction as to count 16, on the basis that it 

was not possible for the jury to determine whether the female depicted in 

the photo was under the age of 18. Moyer asserts that:
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[T]he image associated with [c]ount 16, involves a female who is 

not facing the camera, and whose face cannot be seen. While 

there is no question that she is engaged in sexual contact with 

an adult male, there is simply no way to determine, based on 

the photograph, that the female’s age is under 18. The 

Commonwealth did not present any expert testimony regarding 

the age of the alleged children in any of the photographs.

Brief of Appellant, at 13. Moyer cites to subsection (e) of section 6312, 

which provides that “[i]n the event a person involved in a prohibited sexual 

act is alleged to be a child under the age of 18 years, competent expert 

testimony shall be sufficient to establish the age of said person.” 18 

Pa.C.S.A. § 6312(e) (emphasis added). Moyer asserts that, without expert 

testimony, there was insufficient evidence for the jury to determine the 

female was under the age of 18. There is no merit to this claim. 

In its Rule 1925(a) opinion, the trial court concludes that

[Moyer] provides no compelling reason to disturb any of his 

convictions. The age of the individual depicted in the image 

associated with count 16 is not so obviously 18 or older as to 

warrant reversing the jury’s finding. Far from it, in fact, as the 

jury could very reasonably find the age element proven with 

regard to this image. This is particularly true when one 

considers the title associated with the image, which includes the 

terms “Pedo” and “Childporn.” 

Trial Court Opinion, 7/6/16, at 8 (citations to record omitted).

We agree with the trial court’s rationale. As this court has previously 

noted with regard to an identical claim:

Proof of age, like proof of any other material fact, can be 

accomplished by the use of either direct or circumstantial 

evidence, or both. The proof necessary to satisfy the element of 

age in a dissemination or possession of child pornography case is 

not limited to expert opinion testimony. Subsection (e) merely 

allows that if competent expert testimony is presented it shall be 
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sufficient to establish the age element of the crime. This 

subsection does not mandate such proof in order to sustain a 

conviction. Rather, the outward physical appearance of an 

alleged minor may be considered by the trier of fact in judging 

the alleged minor’s age.

Commonwealth v. Robertson-Dewar, 829 A.2d 1207, 1212 (Pa. Super. 

2003) (emphasis added). Here, the jury, based on everyday observations 

and common life experiences as well as the file name of the image,5

assessed the age of the female depicted in the photo associated with count 

16 and concluded, beyond a reasonable doubt, that she was under the age 

of 18. We see no reason to disturb the jury’s finding. 

Moyer next challenges his convictions as to counts 2, 8, 9 and 11, 

asserting that there was insufficient evidence that the related images 

depicted a child engaging in a prohibited sexual act6or simulation of such an 

act. Moyer claims that the images are neither titillating nor provocative and 

thus, the determination that the photos were taken for the purpose of sexual 

stimulation or gratification “could only have been pure speculation on the 

part of the jury.” Brief of Appellant, at 17. Moyer cites Commonwealth v. 

Savich, 716 A.2d 1251 (Pa. Super. 1998), and Commonwealth v. Tiffany, 

926 A.2d 503 (Pa. Super. 2007), two cases in which this Court found that 

____________________________________________

5

The image was titled “PTHC pedo NEW Childporn Private Daughter Torpedo 

Ranchi loli.” N.T. Trial, 12/2/15, at 118.

6 Section 6312(g) of the Crimes Code defines “prohibited sexual act” to 

include “lewd exhibition of the genitals or nudity if such nudity is depicted for 

the purpose of sexual stimulation or gratification of any person who might 

view such depiction.” 18 Pa.C.S.A. § 6312(g). 
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pictures were taken for the purpose of sexual gratification or stimulation, 

and attempts to distinguish them. Specifically, Moyer argues that, unlike in 

those cases, here “nothing is known about the photographers who took the 

pictures[.] There is no indication that the pictures were taken surreptitiously 

or without the knowledge of the children photographed, and there is nothing 

particularly sexualized or provocative about the pictures.” Brief of Appellant, 

at 17. We disagree. 

In concluding that the Commonwealth presented sufficient evidence to 

support Moyer’s convictions as to the counts in question, the trial court 

found as follows:

As for counts 2, 8, 9, and 11, the related images may not depict 

“sexual acts” in the usual sense of the words. But the child 

pornography statute defines “prohibited sexual act” to include 

“lewd exhibition of the genitals or nudity if such nudity is 

depicted for the purpose of sexual stimulation or gratification of 

any person who might view such depiction.” [18] Pa.C.S.A. § 

6312(g). These images qualify, as it is surely a reasonable 

inference from the evidence that the nudity depicted in these 

images was intended for these purposes. And once again, the 

titles of the images . . . further refute [Moyer’s] position.

Trial Court Opinion, 7/6/16, at 9 (citations to record omitted). 

A review of the images in question, which all depict nude minors in 

various poses, supports the trial court’s conclusion. The image associated 

with count 2, named “lolitaguy mafiasex.RU_children_kids_hard_00293 child 

porn,” see N.T. Trial, 12/2/15, at 115, depicts a nude boy posing in what 

can only be described as a provocative manner outside of a bathroom. The 

image associated with count 8, entitled “Carl David Hyman, Jr., Children 
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pussy 106 – 3 year old witch nudist,” id. at 116, depicts a group of nude 

children, male and female, posing with what appear to be a flowing white 

curtain and a bamboo window blind. The image associated with count 9, 

named “Carl David Hyman, Jr., Kiddie Pussy 06 – witch pedo pthc nudist,” 

id., shows a nude female child with the arm of an adult male appearing to 

restrain her in the upper chest area. Notably, the photograph is framed 

such that the face of the adult male is not included in the image. Finally, the 

image associated with count 11, titled “Jailbait 033 – Jana Young Girls in 

Thongs showing off,” id. at 117, depicts an adolescent female with her hand 

on her hip, leaning provocatively toward the camera, such that her breasts 

are emphasized in the photograph. 

Here, again, the jury used its life experience and common sense to 

conclude that these images of nude children and adolescents were taken for 

the purpose of sexual stimulation or gratification. Furthermore, the file 

names associated with each image, while not necessarily descriptive of the 

content of the photos themselves, clearly indicated an intent that the photos 

be obtained and used for the purposes of sexual gratification by the viewer. 

Accordingly, Moyer’s convictions as to these counts must be affirmed.

Next, Moyer challenges the legality of his sentences as to counts one 

through seven. Specifically, the trial court imposed sentences of 21⁄2 to 8 

years’ imprisonment on each count, all of which were graded as felonies of 

the third degree. The statutory maximum penalty for third-degree felonies 

is seven years. See 18 Pa.C.S.A. § 1103(3) (sentence for felony of third 
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degree may not exceed seven years’ imprisonment). The Commonwealth 

agrees with Moyer’s position, and the trial court has requested that we 

directly vacate the illegal portion of Moyer’s sentence without remanding for 

resentencing, as only the maximum sentence is affected and the court’s 

overall sentencing scheme is not disturbed. “Where it is determined that a 

sentence is illegal, we may remand for resentencing or vacate and amend 

the invalid sentence directly.” Commonwealth v. Huckleberry, 631 A.2d 

1329, 1334 (Pa. Super. 1993). Accordingly, because the overall sentencing 

scheme is unaffected by the illegality present here, we will amend Moyer’s 

sentence directly without remanding to the trial court.

Finally, Moyer challenges the trial court’s imposition of a lifetime 

registration requirement pursuant to SORNA. Moyer was convicted for a 

violation of section 6312(c), which carries a registration requirement of 

twenty-five years, as well as multiple convictions under section 6312(d), 

which each require that he register for a period of 15 years. At sentencing, 

the court imposed lifetime registration as a Tier III offender based on its 

finding that Moyer had committed two or more Tier I or II offenses. See 42 

Pa.C.S.A. § 9799.14(d)(16) (registration as Tier III offender required where 

defendant has two or more convictions for offenses listed as Tier I or Tier II 

offenses). In doing so, the court relied upon this Court’s decision in 

Commonwealth v. Merolla, 909 A.2d 337 (Pa. Super. 2006), in which we 

applied the Megan’s Law II-era precursor to section 9700.14(d)(16) and held 
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that multiple convictions, even when arising from a single course of conduct 

and prosecution, mandate lifetime registration. 

Subsequent to the imposition of Moyer’s sentence, our Supreme Court 

decided Commonwealth v. Lutz-Morrison, 143 A.3d 891 (Pa. 2016), in 

which the Court held that section 9799.14(d)(16) of SORNA may not be 

applied to a defendant whose two or more qualifying Tier I or II convictions 

arose from a single course of conduct and resulted from a single 

prosecution. In so holding, the court noted that SORNA encompasses a 

recidivist philosophy and, as such, requires an act, a conviction, and a 

subsequent act to trigger lifetime registration for multiple offenses otherwise 

subject to a fifteen- or twenty-five-year period of registration. Id. at 895.

The Commonwealth concedes that, pursuant to Lutz, Moyer’s 

registration order must be vacated or amended to reflect the appropriate 25-

year registration requirement.7 Accordingly, as we did with his illegal 

sentence, we will amend Moyer’s registration order as required by Lutz. 

Convictions affirmed; judgments of sentence affirmed as to counts 

eight through sixteen; judgments of sentence as to counts one through 

seven amended to reflect the correct statutory maximum sentence of seven 

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7 The trial court issued its opinion prior to the Supreme Court’s decision in 

Lutz and, thus, continued to rely on Merolla. However, the court 

acknowledged the pendency of Lutz, noting that “unless and until LutzMorrison and [its companion case] A.S. hold otherwise, [Moyer] is subject 

to lifetime registration.” Trial Court Opinion, 7/6/16, at 10. 
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years; SORNA registration order amended to reflect 25-year registration 

requirement. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/1/2017