Commonwealth v. Levy
83 A.3d 457
Pa. Super. Ct.2013Background
- Ty M. Levy was tried non‑jury on charges arising from Skype webcam communications and emails with a 15‑year‑old; he stipulated he and the victim masturbated on webcam and each sent links to pornographic websites.
- Commonwealth withdrew several counts; court convicted Levy of two counts of sexual abuse of children (18 Pa.C.S. §6312(d)), multiple counts of unlawful contact with a minor (18 Pa.C.S. §6318), one count of obscene/other sexual materials (18 Pa.C.S. §5903), and one count of corruption of minors.
- Initial sentence (aggregate 6 years intermediate punishment including 16 months county jail) was reconsidered after the Commonwealth moved for reconsideration; on resentencing court imposed 30 months to 10 years’ state incarceration.
- Levy appealed, raising (1) whether live Skype video is a "computer depiction," (2) whether sending an email link constitutes dissemination of explicit sexual materials, and (3–4) challenges to the trial court’s grant of the Commonwealth’s reconsideration motion and the increased sentence.
- The Superior Court treated statutory claims as sufficiency‑of‑the‑evidence issues, reviewed statutory interpretation de novo, and applied plenary review to sufficiency challenges; sentencing challenges were found waived for failure to preserve.
Issues
| Issue | Levy's Argument | Commonwealth's / Trial Court's Argument | Held |
|---|---|---|---|
| Whether live Skype video is a "computer depiction" under §6312(d) (and thus supports unlawful contact under §6318(a)(5)) | Skype streaming is not a "depiction" like photographs/films; those listed items are tangible/reproducible and Skype images are transient | Images displayed on a computer monitor during Skype "depict" the subject under the ordinary meaning of depiction; excluding Skype would thwart the statute's protective purpose | Skype live video displayed on a monitor is a "computer depiction"; convictions supported |
| Whether an email containing a link to pornographic material constitutes "dissemination" of "explicit sexual materials" under §5903(c) (and §6318(a)(4)) | A link is just a title or reference, not the material itself; recipient must perform a step to view content, so link ≠ material | A link provides immediate, practical access equivalent to sending attachments; criminalizing links prevents easy circumvention by predators and furthers legislative intent to protect minors | An email with a link to pornographic material constitutes dissemination of explicit sexual materials; convictions supported |
| Whether trial court abused discretion by granting Commonwealth’s motion to reconsider sentence | Granting reconsideration and imposing a harsher sentence after no new evidence is an abuse of discretion | Court acted within discretion to grant reconsideration and resentence | Sentencing‑discretion challenge waived for failure to preserve; no relief granted |
| Whether increasing sentence on resentencing was an abuse of discretion | Resentencing produced a harsher sentence without new evidence; court failed to fully consider mitigating factors | Court properly exercised discretion on resentencing; Levy did not preserve objections | Challenge waived for failure to object at resentencing or file post‑sentence motion; claim dismissed |
Key Cases Cited
- Commonwealth v. Diodoro, 970 A.2d 1100 (Pa. 2009) (explaining legislative purpose of child pornography statutes to protect children and eradicate production/supply of child pornography)
- Commonwealth v. Velez, 51 A.3d 260 (Pa. Super. 2012) (rule of lenity and statutory interpretation principles applied in criminal context)
- Commonwealth v. Williams, 871 A.2d 254 (Pa. Super. 2005) (standard of review for sufficiency of the evidence)
- Commonwealth v. Van Aulen, 952 A.2d 1183 (Pa. Super. 2008) (statutory interpretation reviewed de novo)
- Commonwealth v. Arroyo, 991 A.2d 951 (Pa. Super. 2010) (use of Statutory Construction Act principles for interpreting criminal statutes)
- Swords v. Harleysville Ins. Cos., 883 A.2d 562 (Pa. 2005) (statutory interpretation guidance)
- Commonwealth v. Graham, 9 A.3d 196 (Pa. 2010) (rule of lenity in criminal statutes)
- Commonwealth v. Greene, 25 A.3d 359 (Pa. Super. 2011) (criminal statute construction favoring defendant on ambiguity)
- Julian v. State, 738 S.E.2d 647 (Ga. Ct. App. 2013) (describing Skype as live two‑way audio/video communication service)
- Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010) (four‑part test for appellate review of discretionary sentencing challenges)
- Commonwealth v. Tirado, 870 A.2d 362 (Pa. Super. 2005) (objections to discretionary aspects of sentence must be preserved at sentencing or in post‑sentence motion)