Com. v. Pepe
| Decision Date | 08 March 2006 |
| Citation | 897 A.2d 463 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee, v. Jason Christopher PEPE, Appellant. |
| Court | Pennsylvania Superior Court |
Sally Frick, Pittsburgh, for appellant.
William T. Fullerton, Asst. Dist. Atty., Butler, for Com., appellee.
BEFORE: LALLY-GREEN, TODD, and McCAFFERY, JJ.
OPINION BY McCAFFERY, J.:
¶ 1 Appellant, Jason Christopher Pepe, appeals from the judgment of sentence imposed after he was convicted of numerous offenses relating to his use of the internet to distribute and access child pornography. Appellant asks us to determine whether the statutory prohibitions against the sexual abuse of children1 are violative of the constitutions of both the United States and Pennsylvania for being facially invalid and unconstitutionally overbroad and vague. Appellant's specific contention is that the statute criminalizes the possession of material containing computer-generated depictions of children engaged in prohibited sexual activity, as well as depictions of real children involved in prohibited sexual activity. Upon review, we affirm.
¶ 2 The factual background of this matter was described by the trial court as follows:
On February 22, 2002, Corporal John P. Stepansky of the Pennsylvania State Police encountered an individual, alleged to be [Appellant], on an internet chat channel, which Corporal Stepansky knew to be used for the trafficking of child pornography. The individual allegedly initiated a dialogue with Corporal Stepansky stating that he was a 25-year old male from Johnstown, Pennsylvania. During this time[,] the individual sent Corporal Stepansky seven images, two of which were pictures of [Appellant], and the remaining five depicting children under the age of eighteen, either nude or engaged in sexual acts. Corporal Stepansky was able to determine that the Internet Protocol Number from which the images were sent belonged to [Appellant]. Subsequently, a search warrant was issued for [Appellant's] residence and [Appellant's] computer was seized. A forensic search of [Appellant's] hard-drive revealed more images and movies of children under eighteen nude or engaged in sexual acts.
(Trial Court Opinion, dated February 10, 2003, at 1-2).
¶ 3 Appellant waived his right to a jury trial and was found guilty of the following offenses on January 12, 2004: one count of sexual abuse of children for dissemination of photographing, videotaping, depicting on computer or filming sexual acts2 (five images); one count of sexual abuse of children for possession of child pornography3 (twelve movies and forty-five images); and one count of sexual abuse of children for photographing, videotaping, depicting on computer or filming sexual acts4 (four images). Appellant was sentenced to an aggregate term of imprisonment of no less than nine (9) and no more than eighteen (18) months, to be followed by a probationary period of eighty-four (84) months. Appellant filed a timely appeal and now presents the following single issue for our review:
[Whether] [t]he statute prohibiting the Sexual Abuse of Children [18 Pa.C.S.A. §§ 6312(b), (c) and (d)] is facially invalid and unconstitutionally overbroad and vague in prohibiting both illegal and constitutionally protected behavior such as the computer or virtual depiction of children[,] and thus is violative of both the United States and Pennsylvania Constitutions.
¶ 4 The pertinent statutory provisions are as follows:
§ 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) 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.
(2) 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.
(d) Possession of child pornography.—
(1) Any 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.
¶ 5 Appellant argues that these sections are unconstitutional because they may be interpreted to prohibit "virtual" child pornography, such as computer-generated images, that neither depicts nor utilizes real minors. (Appellant's Brief at 9-16). Appellant acknowledges that this Court, in Commonwealth v. Davidson, 860 A.2d 575, 584-85 (Pa.Super.2004), appeal granted, Commonwealth v. Davidson, 582 Pa. 356, 871 A.2d 185 (2005), has already considered these...
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Com. v. Davidson
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