Commonwealth v. Colon-Plaza

• Decision Date: 25 February 2016
• Docket Number: No. 1159 MDA 2015,1159 MDA 2015
• Citation: 136 A.3d 521
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Hector COLON–PLAZA, Appellant.
• Court: Pennsylvania Superior Court

136 A.3d 521

COMMONWEALTH of Pennsylvania, Appellee

v.Hector COLON–PLAZA, Appellant.

No. 1159 MDA 2015

Superior Court of Pennsylvania.

Submitted Jan. 19, 2016.

Filed Feb. 25, 2016.

Michael V. Marinaro, Lancaster, for appellant.

Susan L. DiGiacomo, Office of the Attorney General, Norristown, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Hector Colon–Plaza ("Appellant") appeals from the twenty-five to fifty year judgment of sentence imposed under the mandatory minimum sentencing scheme for recidivist sexual offenses at 42 Pa.C.S.A. § 9718.2.¹ Specifically, he raises sufficiency and weight of the evidence challenges to guilty verdicts on four counts of Sexual Abuse of Children, Child Pornography² and one count of Criminal Use of a Communication Facility,³ asserts a lack of due notice regarding the Commonwealth's intent to seek a mandatory minimum sentence, and claims his mandatory sentence violates federal and state constitutional prohibitions against cruel and unusual punishments. We affirm.

In 2010, Appellant pled guilty to two counts of indecent assault of a minor and received two years' probation, which he completed. On April 17, 2014, the Pennsylvania Office of Attorney General ("OAG") obtained a search warrant for Appellant's residence on evidence that OAG law enforcement software enabling agents to detect the location of computers offering child pornography for download had twice during a four-month period downloaded videos and images of child pornography offered from an internet-based, peer-to-peer file-sharing program⁴ in use at Appellant's residence. Pursuant to a court order, Comcast Cable Communications supplied account information naming Appellant as the wireless internet subscriber. Authorities further determined that wireless internet access from this address was locked and required a password.

Appellant shared the residence with his girlfriend, Angela Gonzalez, and she was home when authorities executed the search warrant. OAG agents confiscated a non-functioning digital tablet, three cell phones, and two laptop computers, one of which was stored in a hallway closet. It was this HP laptop, alone, which contained an Ares file-sharing program, and within this program were files containing the two videos and two images of child pornography captured by the OAG computer. Further examination of the laptop disclosed a username of "HECTOR," a most recent log-on under this username of April 16, 2014, just one day before service of the warrant, and placement of the child pornography files in a file path under this username. N.T. Trial, 3/3/15, at 205–08.

OAG agents obtained Appellant's work address from Ms. Gonzalez and interviewed him at his office after advising him of his Miranda⁵ rights, which he temporarily waived. In his recorded statement, Appellant admitted that he and Ms. Gonzalez kept two computers and one digital tablet in the residence and knew each other's passwords. He denied recent use of the HP laptop computer stored in the hall closet, although he admitted to knowing its password and using it in the past to share music and video files.

Authorities arrested Appellant and charged him with two counts of disseminating child pornography⁶ in addition to the charges referenced above. On March 4, 2015, a jury found Appellant not guilty of disseminating child pornography but guilty on all counts of possession of child pornography and criminal use of communication facilities. Prior to sentencing, the Commonwealth notified Appellant that it would seek a mandatory minimum sentence of 25 years under section 9718.2, supra,a recidivist statute addressing sexual offenders. At Appellant's sentencing hearing, the court noted that a Sexual Offenders Assessment Board determined Appellant was not a sexually violent predator. Nevertheless, finding Appellant was a recidivist sex offender as contemplated under the mandatory minimum sentencing scheme, the court imposed a mandatory 25 to 50–year term of incarceration. This timely appeal followed.

Appellant raises the following questions for our review:

I. DID THE COMMONWEALTH PROVIDE INSUFFICIENT EVIDENCE AS A MATTER OF LAW TO ESTABLISH [APPELLANT'S] GUILT BEYOND A REASONABLE DOUBT ON THE CHARGES OF SEXUAL ABUSE OF CHILDREN[,] POSSESSION OF CHILD PORNOGRAPHY AND CRIMINAL USE OF A COMMUNICATION FACILITY?

II. WAS [APPELLANT'S] GUILTY VERDICT ON THE CHARGES OF SEXUAL ABUSE OF CHILDREN[,] POSSESSION OF CHILD PORNOGRAPHY AND CRIMINAL USE OF A COMMUNICATION FACILITY AGAINST THE WEIGHT OF THE EVIDENCE?

III. IS THE MANDATORY MINIMUM SENTENCE OF 25 YEARS TO 50 YEARS IMPRISONMENT THAT [APPELLANT] RECEIVED UNCONSTITUTIONAL BECAUSE IT VIOLATES THE 8TH, [SIC] AND 14TH AMENDMENTS OF THE UNITED STATES CONSTITUTION, AND ARTICLE I, SECTION 13 OF THE PENNSYLVANIA CONSTITUTIONPROVISIONS AGAINST CRUEL AND UNUSUAL PUNISHMENT BECAUSE IT IS GROSSLY DISPROPORTIONATE TO THE CRIMES [APPELLANT] IS CONVICTED OF?

IV. DID THE TRIAL COURT ERR IN IMPOSING THE MANDATORY MINIMUM SENTENCE PURSUANT TO 42 Pa.C.S.A. § 9718.2COMMONWEALTH FAILED TO PROVIDE [APPELLANT] WITH NOTICE OF THE APPLICABILITY OF THE STATUTE PRIOR TO TRIAL?

Appellant's brief at 4.

Our standard of review for sufficiency claims is well-settled:

The standard we apply in reviewing the sufficiency of evidence is whether, viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for that of the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Robertson–Dewar,829 A.2d 1207, 1211 (Pa.Super.2003).

Section 6312(d), Sexual Abuse of Children, Child Pornography, 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(d).

With regard to § 6312, the Commonwealth must prove the following three (3) elements beyond a reasonable doubt in order to convict an individual of this offense: there must be a depiction of an actual child engaged in a prohibited sexual act or a simulated sexual act; the child depicted must be under the age of eighteen (18); and the defendant must have knowingly possessed or controlled the depiction.

Commonwealth v. Koehler,914 A.2d 427, 436 (Pa.Super.2006)(emphasis omitted).⁷ Section 7512, Criminal Use of a Communication Facility, provides "[a] person commits a felony of the third degree if that person uses a communication facility to commit, cause or facilitate the commission or the attempt thereof of any crime which constitutes a felony under this title." 18 Pa.C.S.A. § 7512(a).

According to Appellant, a lack of direct evidence connecting him with child pornography on the laptop proved fatal to the Commonwealth's case, as circumstantial evidence failed to allow for a reasonable inference of his guilt. In this regard, he posits that evidence showing he was the internet subscriber and profile user on the HP laptop could not, alone, legally suffice to prove he knowingly controlled or possessed child pornography, particularly where Gonzalez had equal access to the laptop. Moreover, he continues, a mere two-hour surveillance of his residence failed to rule out the reasonable possibility that houseguests and visitors had access to the laptop, which, he argues, "was open and available to anyone in the home." Appellant's brief at 12.

Appellant's account of the Commonwealth's evidence is self-servingly incomplete. Not only was he the internet subscriber, profile user of the HP laptop, and one of just two residents living at the address,⁸ he also admitted to having access to the laptop, knowing its password, and, significantly, using its Ares file-sharing program in the past. Moreover, an OAG agent testified that investigators determined the digital tablet no longer worked and found no pornography of any kind on the Gateway laptop computer Ms. Gonzalez claimed was hers. N.T. at 159.

In contrast, forensic examination of the HP laptop revealed an approximately three-year history in which apparent images of child pornography were frequently sought and viewed under Appellant's username. N.T. at 210–11. A 56–page report of activity on the Ares program also identified a three-year history of downloading videos bearing well-known child pornography acronym titles. N.T. at 212–15. Such titles appeared on nearly every page of the report. Id.Moreover, a 36–page report listed all search terms entered into the laptop's Ares program since its 2011 installation, and on the first page, alone, the OAG agent identified seven word searches relating to child pornography. N.T. at 214–15. This report also reflected many instances in which the same search terms were repeated "over and over again," consistent with the common practice of an habitual user attempting to elude detection by seeking familiar materials that...