Com. v. Moyer, Jr., R.
Com. v. Moyer, Jr., R. No. 742 MDA 2016
| Pa. Super. Ct. | Mar 1, 2017Background
- In May 2014, an OAG agent connected to Moyer’s computer on a peer-to-peer network and downloaded a file containing child pornography, which led to a search warrant and seizure of Moyer’s computer. Forensic review recovered multiple images/videos, some deleted and in the recycle bin.
- Moyer initially denied possession, then admitted sometimes encountering child porn while downloading and searching using terms like "teen;" he told an agent he targeted ages 13–15 and believed deleting files made downloading lawful.
- At trial Moyer said he refurbished computers, purchased the hard drive used, and claimed some illicit files preexisted the drive purchase; he denied intentionally sharing files on Shareaza.
- A jury convicted Moyer of 15 counts of possession of child pornography (18 Pa.C.S. § 6312(d)), one count of distribution (18 Pa.C.S. § 6312(c)), and criminal use of a communication facility.
- The trial court sentenced Moyer to an aggregate 5–15 years’ imprisonment and ordered lifetime SORNA registration; posttrial motions were denied and Moyer appealed.
- The Superior Court affirmed convictions, amended counts 1–7 sentences to the statutory maximum for third-degree felonies (7 years) because the court had imposed 8-year maximums, and amended the SORNA registration from lifetime to 25 years per subsequent Pennsylvania Supreme Court authority.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency as to age for Count 16 (whether photo shows person under 18) | Commonwealth: jury may use image, context, and file name to find age beyond reasonable doubt | Moyer: image does not show the face/age and Commonwealth offered no expert age testimony, so evidence insufficient | Affirmed—expert testimony not required; jury may rely on physical appearance and file name to determine age |
| Sufficiency as to sexual-purpose element for Counts 2, 8, 9, 11 | Commonwealth: images of nude minors and provocative poses plus file names allow reasonable inference they were for sexual stimulation/gratification | Moyer: images are not overtly sexualized; inference of purpose is speculative without other indicia | Affirmed—images and filenames support inference that nudity was intended for sexual gratification |
| Legality of sentences on Counts 1–7 (court imposed 2.5–8 yrs where 7 yrs max) | Commonwealth: (concedes) sentence exceeded statutory maximum for third-degree felonies | Moyer: sentences illegal because statutory max is 7 years | Remedy: Superior Court amended sentences directly to reflect 7-year statutory maximums |
| SORNA registration duration (lifetime vs. statutory term) | Commonwealth/trial court: multiple convictions triggered Tier III lifetime registration under Merolla | Moyer: lifetime registration improper where multiple qualifying convictions arose from the same course/prosecution | Held: Under PA Supreme Court in Lutz-Morrison, multiple qualifying convictions from single course/prosecution do not trigger lifetime registration; Superior Court amended registration to 25 years |
Key Cases Cited
- Commonwealth v. Franklin, 69 A.3d 719 (Pa. Super. 2013) (standard of review for sufficiency challenges)
- Commonwealth v. Robertson-Dewar, 829 A.2d 1207 (Pa. Super. 2003) (age may be proven by lay observation and circumstantial evidence; expert testimony not mandatory)
- Commonwealth v. Savich, 716 A.2d 1251 (Pa. Super. 1998) (analysis of whether images were taken for sexual gratification)
- Commonwealth v. Tiffany, 926 A.2d 503 (Pa. Super. 2007) (similar sufficiency analysis regarding sexualized depiction)
- Commonwealth v. Merolla, 909 A.2d 337 (Pa. Super. 2006) (pre-Lutz rule treating multiple convictions in single prosecution as triggering enhanced registration)
- Commonwealth v. Lutz-Morrison, 143 A.3d 891 (Pa. 2016) (holds lifetime SORNA Tier III registration cannot be applied when multiple qualifying convictions arise from a single course of conduct and single prosecution)
- Commonwealth v. Huckleberry, 631 A.2d 1329 (Pa. Super. 1993) (authority allowing direct amendment of an illegal sentence by appellate court)