Com. v. Davidson

Decision Date20 November 2007
Docket NumberNo. 34 MAP 2005.,34 MAP 2005.
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Joseph Henry Paul DAVIDSON, Appellant.
CourtPennsylvania Supreme Court

W. Wayne Punshon, Esq., Elwyn, for Joseph Henry Paul Davidson.

George Michael Green, Esq., Andrew S. Kovach, Esq., Media, for Commonwealth of Pennsylvania.

BEFORE: CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.

OPINION

Justice CASTILLE.

In the case sub judice, we are asked to decide whether Section 6312(d) of the statute governing possession of child pornography, 18 Pa.C.S. § 6312(d), is unconstitutionally vague and/or overbroad. Additionally before this Court are the following questions: (1) Did the General Assembly intend that a person charged under Section 6312(d) be subjected to individual counts for each item of child pornography possessed? and (2) If the General Assembly so intended, is it constitutional to impose separate punishments for each conviction? For the following reasons, we hold that Section 6312(d) is not unconstitutionally vague or overbroad. Furthermore, we find that the General Assembly did intend that a person charged under Section 6312(d) may be subjected to individual counts and sentences for each item of child pornography possessed, and that the General Assembly's intention in this regard is constitutional. Accordingly, we affirm the Superior Court.

In 2000, the Delaware County District Attorney's Office, Criminal Investigation Division ("CID"), established the Internet Crime Against Children Taskforce ("Taskforce") funded via a federal grant received through the Office of Juvenile Justice and Delinquency Prevention to investigate Internet crimes, including child exploitation over the Internet. Lieutenant David C. Peifer of the CID, a 26-year police veteran, supervised the Taskforce. In the Fall of 1999, Lt. Peifer was involved in a joint federal and local initiative started by the Dallas, Texas Police Department and the United States Postal Inspection Service, labeled Operation Avalanche. Operation Avalanche was an investigation into Landslide Incorporated ("Landslide"), a company that supplied child pornography for web access over the Internet. For a $29.95 fee, paid via credit card, an individual would gain access to Landslide's Internet site for a 30-day period to view child pornography. Landslide's Internet site was eventually shutdown and its records were seized by the United States Postal Inspection Service, the Federal Bureau of Investigation, and the Dallas Police Department. Law enforcement recovered the database of customer records as a result of the seizure, constituting a list totaling over 35,000 names throughout the United States. The Dallas Police Department and the United States Postal Inspection Service then distributed the list to various taskforces and agencies throughout the United States for further investigation of individuals who purchased child pornography.

Lt. Peifer received a list of 1,398 individuals with addresses in Pennsylvania from Landslide's seized database of customer records. Appellant Joseph Henry Paul Davidson's name, address and credit card number appeared on this list. On October 17, 2001, Lt. Peifer and Detective William Henderson of the Ridley Township Police Department proceeded to the Ridley Township, Delaware County address provided for appellant in Landslide's customer records. Lt. Peifer identified himself and explained to appellant that they were there concerning an investigation into the purchase of child pornography over the Internet. After asking appellant if there was a more private place to continue their discussion, appellant took Lt. Peifer and Det. Henderson to his bedroom, where appellant's computer was located.

Lt. Peifer then informed appellant that his name appeared on Landslide's database of customer records as a person who had purchased child pornography. Appellant indicated that he did not remember any such purchase. Lt. Peifer next asked appellant if he would voluntarily consent to a search of his computer's hard drive to see if it contained child pornography, explaining that appellant was not required to consent to such a search and could refuse to consent, or could stop the search at any time once it began. Appellant agreed to the search and signed a consent form to that effect.

Lt. Peifer then inserted a disk into appellant's computer that contained a "pre-search" program that scans a computer's hard drive for images, pictures or graphics. While performing the scan, Lt. Peifer observed images that he believed to be child pornography. Lt. Peifer then stopped the search and informed appellant that, based on the images he had viewed, appellant's computer would be seized and a search warrant would be obtained. Lt. Peifer asked appellant if others had access to the computer, and appellant explained that he owned the computer, that he was the only person with access to the computer and anything on the computer was put there by him. Lt. Peifer turned the computer off and disconnected the cables. While doing so, Lt. Peifer came across a separate hard drive sitting on top of the computer. Lt. Peifer asked about the hard drive, and appellant stated that he did not know what was on the hard drive, but that Lt. Peifer was free to take it. Lt. Peifer then explained to appellant that his computer would be examined by a forensic examiner and that he would be charged with respect to any images of child pornography that appeared on his computer.

At the end of October 2001, Lt. Peifer obtained a search warrant and transferred the computer to Agent William Applegate, a computer forensic examiner for the Pennsylvania Attorney General's Office. On January 27, 2002, Lt. Peifer received Agent Applegate's report, which indicated that there were in excess of 1,300 images of child pornography in both video format and still photographs located on appellant's computer. Agent Applegate's report indicated that several of the photographs matched a National Center for Missing and Exploited Children database as known child pornography. Consequently, on February 6, 2002, appellant was arrested and charged with 500 counts of Sexual Abuse of Children in violation of 18 Pa. C.S. § 6312(d).1

A non-jury trial was held before the Honorable Joseph P. Cronin on November 13 and 14, 2002, wherein appellant was convicted of 28 counts of Sexual Abuse of Children under Section 6312(d).2 On February 25, 2003, the court sentenced appellant, on each of the 28 counts, to a term of confinement of not less than one year less one day, nor more than two years less one day, with the sentences to run concurrently, and a five-year term of probation.3 The court also ordered appellant to: undergo a psychosexual evaluation; be supervised by the Sexual Abuse Unit after obtaining parole and during probation and to comply with all of its recommendations; forfeit his computer hard drives and monitor; register with the Pennsylvania State Police for ten years; and provide a DNA sample prior to his release.

Following sentencing, appellant filed a Motion for Extraordinary Relief pursuant to Pa.R.Crim.P. 704 and a motion challenging the sufficiency and weight of the evidence, which were denied by the trial court. On March 11, 2003, appellant filed a Notice of Appeal, and the trial court directed appellant to file a Concise Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P.1925(b). The trial court then issued its opinion pursuant to Pa.R.A.P.1925(a) on December 30, 2003.

The trial court first found that the verdict was not against the weight of the evidence and that the verdict was legally sufficient. Further, the court held that the definition of "prohibited sexual act" in 18 Pa.C.S. § 6312(a) ("sexual intercourse ..., masturbation, sadism, masochism, bestiality, fellatio, cunnilingus, lewd exhibition of the genitals or nudity ...") was satisfied because "at least [ ] 28 ... of the pornographic images stored within [a]ppellant['s][ ] computer depicted children engaged in vaginal intercourse, anal intercourse, oral sex, performing sex acts, or in various stages of undress or ... in sexually provocative poses." Trial Ct. Op. at 13. The trial court also found that the same 28 images "were copied and archived" in appellant's computer, indicating that someone knew of the existence of these images and saved the images for future viewing. Id. at 14. The trial court determined, beyond a reasonable doubt, that appellant was that individual. Id.

Appellant also challenged the constitutionality of Section 6312(a)'s qualifier to the term "nudity" on the grounds that it was both vague and overbroad. The court found that the term "nudity" is not vague as it is "precisely defined, in that it attaches as a condition of criminality, the fact that the nudity must be depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction." Trial Ct. Op. at 15-16. The court explained that viewing pictures of nude children for sexual gratification is a criminal act. Furthermore, the court held that Section 6312(d) is not overbroad, finding that viewing nude children for sexual stimulation or gratification "grossly offends what society deems to be acceptable behavior[,]" and prohibiting the same does not offend constitutionally protected activity. Id. at 16.

Additionally, the court rejected appellant's challenge to his sentence. Specifically appellant had charged that the trial court erred in "sentencing [a]ppellant to consecutive sentences in a case where [appellant] was charged with multiple counts of a possessory crime inasmuch as, for sentencing purposes, the counts merge." Concise Statement of Matters Complained of on Appeal at 3. The court found that it had explained appellant's sentence in great detail and provided numerous well-founded reasons for its sentence on the record before sentencing. Further, the court...

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