Com. v. Jarowecki

• Decision Date: 30 December 2009
• Docket Number: No. 32 MAP 2008,32 MAP 2008
• Citation: 985 A.2d 955
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Craig Scott JAROWECKI, Appellant.
• Court: Pennsylvania Supreme Court

985 A.2d 955

COMMONWEALTH of Pennsylvania, Appellee v. Craig Scott JAROWECKI, Appellant.

No. 32 MAP 2008

Supreme Court of Pennsylvania.

Submitted October 7, 2008.

Decided December 30, 2009.

Lara Christine Glenn Hoffert, Sodomsky & Nigrini, for Craig Scott Jarowecki.

John T. Adams, Alisa Rebecca Hobart, Berks County District Attorney's Office, Reading, for Commonwealth of Pennsylvania.

Karl Baker, Peter Rosalsky, Defender Association of Philadelphia, Philadelphia, for Amicus Curiae Defender Association of Philadelphia.

BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.

OPINION

Justice TODD.

In this appeal, we address the proper grading of Appellant Craig Scott Jarowecki's eight convictions for possession of child pornography under 18 Pa.C.S.A. § 6312(d)(2). For the reasons that follow, while Jarowecki's convictions remain undisturbed, we conclude the trial court erred in deeming his convictions at counts 2 through 8 of the multiple count complaint to be "second offenses" under that statute, and thus erred in grading those convictions as second-degree, rather than third-degree, felonies. Accordingly, we reverse and remand.

In January 2005, internet service provider America Online ("AOL") contacted law enforcement personnel in Berks County to report that one of its subscribers, Jarowecki, had sent an email message to another subscriber containing child pornography. Based on this information, police secured a search warrant for Jarowecki's home, which they executed on January 20, 2005. When told that police were looking for child pornography, Jarowecki, an employee of the Children's Hospital of Philadelphia, claimed that he had contacted AOL himself to report that he had received a video showing an adult engaged in a sexual act with an infant. Pursuant to the search warrant, police seized two computers from Jarowecki's residence, as well as hundreds of VHS tapes and dozens of floppy and CD-ROM disks. Police discovered thousands of pornographic images and movies on the disks, eight of which it was determined depicted child pornography.¹ Jarowecki was charged with eight counts² of possession of child pornography in violation of 18 Pa.C.S.A. § 6312, which then provided, inter alia, that "[a]ny person who 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." Id. § 6312(d)(1).³

At trial, Jarowecki stipulated that a Commonwealth expert, a pediatrician, would have testified that all of the children depicted in the eight images were under the age of 18 and that some were under the age of 15. The Commonwealth also offered the testimony of the detectives assigned to the case, both of whom explained the search of Jarowecki's residence and described the items seized there. Jarowecki admitted to police that he viewed child pornography a few hundred times in the previous years.

Jarowecki testified at trial that the images at issue came to him through his participation in various internet groups that shared adult pornography among their members. Jarowecki stated that he regularly downloaded hundreds of images he believed to be adult pornography. According to Jarowecki, he programmed his computer to perform these downloads automatically. He claimed that he did not choose which images to save to the disks, but instead retained all the images he received from his participation within the various groups. On cross-examination, Jarowecki admitted that he had created a subfolder system in order to store his pornography collection.⁴ He also claimed that the only time he sent child pornography from his account was in an email he sent to AOL to report his prior receipt of child pornography.

AOL's director of investigations testified on rebuttal. He contradicted Jarowecki's testimony, telling the jury that AOL had not received a report from Jarowecki alerting AOL to his receipt of child pornography. Further, the director testified that AOL became aware of Jarowecki's possession of child pornography because Jarowecki sent a pornographic image from his AOL account.⁵ To do so, explained the director, Jarowecki created a new email and embedded the image into the body of the email.

The jury returned guilty verdicts on all eight counts.⁶ At the sentencing hearing on July 3, 2006, the Commonwealth moved to grade counts 2 through 8 as second-degree felonies — "second offense[s]" — pursuant to 18 Pa.C.S.A. § 6312(d)(2), which provided that "[a] first offense under this subsection is a felony of the third degree, and a second or subsequent offense under this subsection is a felony of the second degree." The trial court rejected Jarowecki's contention that convictions within a multiple count complaint cannot serve as a sentencing enhancement for another conviction in the same complaint, relying on Commonwealth v. Vasquez, 562 Pa. 120, 125-27, 753 A.2d 807, 810 (2000) (holding that the phrase, "if at the time of sentencing the defendant has been convicted of another drug trafficking offence," contained in 18 Pa.C.S.A. § 7508(a)(3)(i), allowed for a conviction within a multiple count complaint to serve as a sentencing enhancement for another conviction contained with the same complaint). Thus, the trial court graded the conviction for count 1 — the "first offense" — as a third-degree felony, and the convictions for counts 2 through 8 — the "second offense[s]" — as second-degree felonies. It then imposed an aggregate sentence of 37 to 204 months imprisonment followed by 20 years of probation.⁷

In his direct appeal to the Superior Court, Jarowecki claimed that the trial court's application of Section 6312(d)(2) was improper and resulted in an illegal sentence. Jarowecki maintained that the grading increase for a "second or subsequent offense" did "not allow for a conviction within a multiple count complaint to serve as a grading enhancement for another conviction contained within the same complaint," Commonwealth v. Jarowecki, 923 A.2d 425, 428 (Pa.Super.2007), and contended that the trial court's reliance on Vasquez, supra, was misplaced. Reviewing Vasquez, and this Court's subsequent decisions in Commonwealth v. Shiffler, 583 Pa. 478, 879 A.2d 185 (2005), and Commonwealth v. McClintic, 589 Pa. 465, 472, 909 A.2d 1241, 1245 (2006), the Superior Court rejected Jarowecki's arguments and affirmed the judgment of sentence. The panel, in a published opinion by Judge Patrick R. Tamilia, held that, under Section 6312(d)(2), "one conviction in a multiple count complaint can serve as a `second or subsequent offense' for purposes of enhancing the grade of another conviction contained within the same complaint."⁸ Jarowecki, 923 A.2d at 429. In a concurring and dissenting statement, Judge John T. Bender disagreed that the grading enhancement applied, and would have remanded the matter for resentencing without the enhancement.

This Court granted review to address whether the grading of Jarowecki's convictions was proper; specifically, we accepted review on the following question: "Whether the grading of the child pornography convictions at Counts 2 through 8 in a multiple counts complaint can be enhanced as a result of a child pornography conviction on Count 1?" Commonwealth v. Jarowecki, 596 Pa. 586, 947 A.2d 713, 714 (2008) (order). As this issue is one of statutory interpretation to determine the lawfulness of the sentence imposed, it is a pure question of law, and thus our standard of review is de novo. McClintic, 589 Pa. at 472, 909 A.2d at 1245. When interpreting a statute, we are guided by the Statutory Construction Act, which states that our task is to effectuate the intent of the legislature. See 1 Pa.C.S.A. § 1921(a) ("The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions."). In doing so, "[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." 1 Pa.C.S.A. § 1921(b). We construe statutory language according to its "common and approved usage," unless particular words and phrases have "acquired a `peculiar and appropriate meaning.'" McClintic, 589 Pa. at 472, 909 A.2d at 1245 (quoting 1 Pa.C.S.A. § 1903(a)). However, penal statutes are to be strictly construed, 1 Pa.C.S.A. § 1928(b)(1), and thus any ambiguity must be interpreted in favor of the defendant, Commonwealth v. Bullock, 590 Pa. 480, 488, 913 A.2d 207, 212 (2006).

Before turning to the parties' arguments on appeal, we quote the text of the relevant statute. Section 6312 provided:

§ 6312. Sexual abuse of children

(a) Definition. — As used in this section, "prohibited sexual act" means sexual intercourse as defined in section 3101 (relating to definitions), masturbation, sadism, masochism, bestiality, fellatio, cunnilingus, 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.

(b) Photographing, videotaping, depicting on computer or filming sexual acts. — Any person who causes or knowingly permits a child under the age of 18 years to engage in a prohibited sexual act or in the simulation of such act is guilty of a felony of the second degree if such person knows, has reason to know or intends that such act may be photographed, videotaped, depicted on computer or filmed. Any person who knowingly photographs, videotapes, depicts on computer or films a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such an act is guilty of a felony of the second degree.

(c) Dissemination of photographs, videotapes, computer depictions and films. —

(1...