Commonwealth v. DavidsonCommonwealth v. Davidson
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Lead Opinion
In the case sub judice, we are asked to decide whether Section 6312(d) of the statute governing possession of child pornography,
In 2000, the Delaware County District Attorney’s Office, Criminal Investigation Division (“CID”), established the Internet Crime Against Children Taskforce (“Taskforce”) funded via a federal grant received through the Office of Juvenile Justice and Delinquency Prevention to investigate Internet crimes, including child exploitation over the Internet. Lieutenant David C. Peifer of the CID, a 26-year police veteran, supervised the Taskforce. In the Fall of 1999, Lt. Peifer was involved in a joint federal and local initiative started by the Dallas, Texas Police Department and the United States Postal Inspection Service, labeled Operation Avalanche. Operation Avalanche was an investigation into Landslide Incorporated (“Landslide”), a company that supplied child pornography for web access over the Internet. For a $29.95 fee, paid via credit card, an individual would gain access to Landslide’s Internet site for a 30-day period to view child pornography. Landslide’s Internet site was eventually shutdown and its records were seized by the United States Postal Inspection Service, the Federal Bureau of Investigation, and the Dallas Police Department. Law enforcement recovered the database of customer records as a result of the seizure, constituting a list totaling over 35,000 names throughout the United States. The Dallas Police Department and the United States Postal Inspection Service then distributed the list to various task-forces and agencies throughout the United States for further investigation
Lt. Peifer received a list of 1,398 individuals -with addresses in Pennsylvania from Landslide’s seized database of customer records. Appellant Joseph Henry Paul Davidson’s name, address and credit card number appeared on this list. On October 17, 2001, Lt. Peifer and Detective William Henderson of the Ridley Township Police Department proceeded to the Ridley Township, Delaware County address provided for appellant in Landslide’s customer records. Lt. Peifer identified himself and explained to appellant that they were there concerning an investigation into the purchase of child pornography over the Internet. After asking appellant if there was a more private place to continue their discussion, appellant took Lt. Peifer and Det. Henderson to his bedroom, where appellant’s computer was located.
Lt. Peifer then informed appellant that his name appeared on Landslide’s database of customer records as a person who had purchased child pornography. Appellant indicated that he did not remember any such purchase. Lt. Peifer next asked appellant if he would voluntarily consent to a search of his computer’s hard drive to see if it contained child pornography, explaining that appellant was not required to consent to such a search and could refuse to consent, or could stop the search at any time once it began. Appellant agreed to the search and signed a consent form to that effect.
Lt. Peifer then inserted a disk into appellant’s computer that contained a “pre-search” program that scans a computer’s hard drive for images, pictures or graphics. While performing the scan, Lt. Peifer observed images that he believed to be child pornography. Lt. Peifer then stopped the search and informed appellant that, based on the images he had viewed, appellant’s computer would be seized and a search warrant would be obtained. Lt. Peifer asked appellant if others had access to the computer, and appellant explained that he owned the computer, that he was the only person with access to the computer and anything on the computer was put there by him. Lt. Peifer turned the computer off and disconnected the cables. While doing so, Lt. Peifer came across a separate hard drive sitting on top of the computer. Lt. Peifer asked about the hard drive, and appellant stated that he did not know what was on the hard drive, but that Lt. Peifer was free to take it. Lt. Peifer then explained to appellant that his computer would be examined by a forensic examiner and that he would be charged with respect to any images of child pornography that appeared on his computer.
At the end of October 2001, Lt. Peifer obtained a search warrant and transferred the computer to Agent William Applegate, a computer forensic examiner for the Pennsylvania Attorney General’s Office. On January 27, 2002, Lt. Peifer received Agent Applegate’s report, which indicated that there were in excess of 1,300 images of child pornography in both video format and still photographs located on appellant’s computer. Agent Applegate’s report indicated that several of the photographs matched a National Center for Missing and Exploited Children database as known child pornography. Consequently, on February 6, 2002, appellant was arrested and charged with 500 counts of Sexual Abuse of Children in violation of
Following sentencing, appellant filed a Motion for Extraordinary Relief pursuant to
The trial court first found that the verdict was not against the weight of the evidence and that the verdict was legally sufficient. Further, the court held that the definition of “prohibited sexual act” in
Appellant also challenged the constitutionality of
Additionally, the court rejected appellant’s challenge to his sentence. Specifically,
On appeal to the Superior Court, the panel affirmed appellant’s judgment of sentence. Commonwealth v. Davidson, 860 A.2d 575 (Pa.Super.2004). The court found that the evidence was sufficient to prove appellant guilty beyond a reasonable doubt and that the verdict was not against the weight of the evidence. Additionally the court held that
The Superior Court also rejected appellant’s claim that the court improperly imposed multiple sentences for a single possessory offense, and thus, violated his constitutional right against double jeopardy. The court found that appellant misinterpreted this Court’s Opinion Announcing the Judgment of the Court (“OAJC”) in Commonwealth v. Gatling, 570 Pa. 34, 807 A.2d 890 (2002), and noted that the Gatling OAJC found that a merger analysis is not required if the offenses stem from different criminal acts. Davidson, 860 A.2d at 583 (citing Gatling, 807 A.2d at 899). Thus, under Gatling, the court explained that it did not reach the question of merger because the offenses charged stemmed from different criminal acts. Davidson, 860 A.2d at 583. Specifically, the court explained that there were 28 pornographic pictures featuring children under the age of eighteen, and that “[e]ach photograph of each child victimized that child and subjected him or her to precisely the type of harm the statute seeks to prevent.” Id. Furthermore, the court noted that if it were to apply the merger doctrine here, appellant would receive a “volume discount” on his multiple crimes. Id. (quoting Commonwealth v. Anderson, 538 Pa. 574, 650 A.2d 20, 22 (1994)).
This Court granted further review. All issues presented for our review are questions of law. Thus, our scope of review is plenary and our standard of review is de novo. See Burger v. Sch. Bd. of McGuffey Sch. Dist., 592 Pa. 194, 923 A.2d 1155, 1160 (2007); Alliance Home v. Bd. of Assessment Appeals, 591 Pa. 436, 919 A.2d 206, 214 (2007).
I. Constitutionality of
Before this Court, appellant argues that
Appellant contends that the statutory qualifier to the term “nudity” in Section 6812(a) creates a standard that is completely subjective, requiring a person to guess at its meaning. Appellant argues that
Further, appellant posits that the vagueness problem lies in determining which depictions of nude minors, not engaged in the statutorily specified sexual activity, qualify as “prohibited sexual acts.” Appellant asserts that the “any person” language in the
Appellant also contends that
Additionally, appellant argues that
The Commonwealth counters, first, that
As to vagueness, the Commonwealth argues that the plain language of the statute; the circumstances surrounding the acquisition and possession of the images of nude minors; and “an. examination of the content, focus and background of the depiction create [ ] an objective standard, allowing reasonable persons to know which depictions are prohibited by [Section] 6312.” Commonwealth’s Brief at 12. Thus, the Commonwealth posits as an example that photos of an infant in a bathtub taken by the child’s parents and disseminated to others objectively would not fall under the purview of
The Commonwealth further contends that it must only prove knowing possession of materials depicting nude minors and that those materials were depicted for the purpose of sexual stimulation or gratification. The Commonwealth argues that, under the statute, it is the depicter’s purpose, and not the viewer’s, which is determinative. Thus, the Commonwealth maintains that the “any person” language makes clear that the Commonwealth is not required to prove that a defendant was himself sexually aroused by the image.
The Commonwealth also maintains that
As to appellant’s overbreadth claim, the Commonwealth rebuts that child pornography falls outside the scope of the First Amendment and Article I, Section 7, and thus, it is not considered protected speech or conduct and that
In his reply brief, appellant claims that the Commonwealth’s arguments confirm the subjectivity and vagueness of the language of
At the time of appellant’s arrest,
(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.
* * * * Hi *
(d) Possession of child pornography. — 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 is guilty of a felony of the third degree.
* * * * * *
(f) Exceptions. — This section does not apply to any material that is possessed, controlled, brought or caused to be brought into this Commonwealth, or presented for a bona fide educational, scientific, governmental or judicial purpose.
Under the void-for-vagueness standard, a statute will only be found unconstitutional if the statute is “so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application.” Commonwealth v. Cotto, 562 Pa. 32, 753 A.2d 217, 220 (2000) (quotations omitted); see also Commonwealth v. Mayfield, 574 Pa. 460, 832 A.2d 418, 422 (2003). However, a statute will pass a vagueness constitutional challenge if the statute “define[s] the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983); Commonwealth v. Bullock, 590 Pa. 480, 913 A.2d 207, 212 (2006). Due process requires that a criminal statute give fair warning of the conduct it criminalizes. See Commonwealth v. Magliocco, 584 Pa. 244, 883 A.2d 479, 487 (2005) (citing Rogers v. Tennessee, 532 U.S. 451, 457, 121 S.Ct. 1693, 1698, 149 L.Ed.2d 697 (2001); United States v. Harriss, 347 U.S. 612, 618, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954)); see also Commonwealth v. Noel, 579 Pa. 546, 857 A.2d 1283, 1285 (2004). Furthermore, even if the General Assembly could have chosen “ ‘clearer and more precise language’ equally capable of achieving the end which
A challenge to the constitutionality of a statute under the “overbreadth” doctrine is generally limited to the First Amendment. United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987); Bullock, 913 A.2d at 214. The United States Supreme Court has explained that the traditional rules of standing have been altered to:
[p]ermit — in the First Amendment area-“attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.” Dombrowski v. Pfister, [380 U.S. 479, 486, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22 (1965)]. Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.
Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). The Constitution provides “significant protection from overbroad laws that chill speech within the First Amendment’s vast and privileged sphere.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244, 122 S.Ct. 1389, 1399, 152 L.Ed.2d 403 (2002).
A statute is unconstitutionally overbroad only if it punishes lawful “constitutionally protected activity as well as illegal activity.” Commonwealth v. Barud, 545 Pa. 297, 681 A.2d 162, 165 (1996); see also Commonwealth v. Craven, 572 Pa. 431, 817 A.2d 451, 454 (2003). Thus, in determining whether a statute is unconstitutional due to overbreadth, a “court’s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct.” Commonwealth v. Ickes, 582 Pa. 561, 873 A.2d 698, 702 (2005) (quoting Vill. of Hoffman Estates v. Flipside, Hoffman Estates Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982)). The “overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Broadrick, 413 U.S. at 615, 93 S.Ct. at 2918. Consequently, if a statute’s overbreadth is substantial, “it may not be enforced against anyone until it is narrowed to reach only unprotected activity.” Mayfield, 832 A.2d at 425 (quoting Commonwealth v. Hendrickson, 555 Pa. 277, 724 A.2d 315, 317-18 (1999)).
This Court has explained that the:
function of overbreadth adjudication ... attenuates as the prohibited behavior moves from pure speech towards conduct, where the conduct falls within the scope of otherwise valid criminal laws that reflect legitimate state interests.... [Further,! while such laws may implicate protected speech, at some point that potential effect does not justify invalidating a statute prohibiting conduct that a state has the power to proscribe.
Hendrickson, 724 A.2d at 318 (citing Broadrick, 413 U.S. at 615, 93 S.Ct. at 2917). Notably, the United States Supreme Court has described application of the overbreadth doctrine as “strong medicine” which is “employed sparingly and only as a last resort.” Broadrick, 413 U.S. at 613, 93 S.Ct. at 2916.
In Ferber, the Court recognized that the exploitation of children through the production of child pornography is a significant national problem, which causes the children who are subjects of pornographic materials to suffer psychological, emotional and mental harm. Id. at 758, 102 S.Ct. at 3355; see also Osborne v. Ohio, 495 U.S. 103, 109, 110 S.Ct. 1691, 1696, 109 L.Ed.2d 98 (1990). Thus, the States “are entitled to greater leeway in the regulation of pornographic depictions of children.” Ferber, 458 U.S. at 756, 102 S.Ct. at 3354. The Ferber Court identified five reasons to explain the latitude afforded to the States.
The Court first stated that a “State’s interest in safeguarding the physical and psychological well-being of a minor is compelling.” Id. (quotations omitted). The Court further noted that the “prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.” Id. at 756, 102 S.Ct. at 3355.
Second, the Court noted that the distribution of child pornography is “intrinsically related to the sexual abuse of children” because the “materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation.” Id. at 759, 102 S.Ct. at 3355; see also Free Speech Coalition, 535 U.S. at 249, 122 S.Ct. at 1401; Osborne, 495 U.S. at 111, 110 S.Ct. at 1697.
Third, the Court noted that the advertising and selling of child pornography are integral to its production because it provides an economic motive for perpetuation of child pornography. The Court reasoned that if enforceable production laws were in effect, there would be no child pornography to market. Ferber, 458 U.S. at 761-62, 102 S.Ct. at 3357; see also Osborne, 495 U.S. at 110, 110 S.Ct. at 1696.
Fourth, the Court found that the value of videos or photographs of minors involved in lewd sexual conduct had “exceedingly modest, if not de minimis ” value. Ferber, 458 U.S. at 762, 102 S.Ct. at 3357. The Court noted that it was “unlikely that visual depictions of children performing sexual acts or lewdly exhibiting their genitals would often constitute an important and necessary part of a literary performance or scientific or educational work.” Id. at 762-63, 102 S.Ct. at 3357.
Lastly, the Court held that not affording child pornography the protection of the First Amendment was compatible with Supreme Court precedent. The Court found that because the New York statute in question “bears so heavily and pervasively on the welfare of children engaged in its production, we think the balance of competing interests is clearly struck and that it is permissible to consider these materials as without the protection of the First Amendment.” Id. at 764, 102 S.Ct. at 3358.
The Ferber Court differentiated its holding from Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) (obscene
The Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State’s particular and more compelling interest in prosecuting those who promote the sexual exploitation of children. Thus, the question under the Miller test of whether a work, taken as a whole, appeals to the prurient interest of the average person bears no connection to the issue of whether a child has been physically or psychologically harmed in the production of the work. Similarly, a sexually explicit depiction need not be “patently offensive” in order to have required the sexual exploitation of a child for its production. In addition, a work which, taken on the whole, contains serious literary, artistic, political, or scientific value may nevertheless embody the hardest core of child pornography.... We therefore cannot conclude that the Miller standard is a satisfactory solution to the child pornography problem.
Ferber, 458 U.S. at 761, 102 S.Ct. at 3356-57. The Court also clarified that the Ferber test is distinct from the Miller obscenity standard as follows: “A trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole.” Id. at 764, 102 S.Ct. at 3358. Thus, under Ferber, child pornography may be prohibited whether or not the images would be considered obscene under the Miller standard.
In Osborne, the U.S. Supreme Court held that Ohio’s statute proscribing the possession and viewing of child pornography was constitutional under the First Amendment. The Court found that it is “reasonable for [a] State to conclude that it will decrease the production of child pornography if it penalizes those who possess and view the product, thereby decreasing demand.” Osborne, 495 U.S. at 109-110, 110 S.Ct. at 1696.
The Court also explained that, following the Ferber decision, much of the child pornography market was driven underground making it “difficult, if not impossible, to solve the child pornography problem by only attacking production and distribution.” Id. at 110, 110 S.Ct. at 1697. Consequently, numerous states found it necessary to proscribe the simple possession of child pornography as a way to “stamp out this vice at all levels in the distribution chain.” Id.8 Thus, the Osborne Court concluded
Turning to the constitutionality of the statute at issue here, the Superior Court examined a vagueness challenge to
The Savich panel determined that the language “for the purpose of sexual stimulation or gratification” “permits the fact-finder to distinguish between depictions such as those in the present case from nude depictions taken for legitimate scientific, medical or educational activities, which are specifically exempt under
As to the Savich defendant’s challenge that, under
Like Pennsylvania, three other States, Delaware, New Jersey and Iowa, employ the language “prohibited sexual act” in their statutes proscribing the possession of child pornography. These three States also list “nudity” as a “prohibited sexual act” and define it in the same or a substantially similar fashion as the definition in
It shall be unlawful to knowingly purchase or possess a negative, slide, book, magazine, computer, computer disk, or other print or visual medium, or an electronic, magnetic, or optical storage system, or any other type of storage system which depicts a minor engaging in a prohibited sexual act or the simulation of a prohibited sexual act.
A review of the Iowa case in which the constitutionality of the term “nudity” was challenged is informative to this Court’s analysis. In State v. Hunter, 550 N.W.2d 460 (Iowa 1996), the Iowa Supreme Court considered a vagueness challenge to its statutory qualifier of “nudity.” In Hunter, according to the opinion, a father, dressed only in underwear and sexually aroused, photographed his twelve-year-old daughter in various stages of undress. In many of the photographs, the defendant’s daughter was in provocative poses exposing her
The defendant in Hunter claimed that the definition of “prohibited sexual act” was unconstitutionally vague because (1) there was no further statutory definition of “nudity of a minor for the purpose of arousing or satisfying the sexual desires of a person” and (2) the statute allegedly could reach persons who merely derive sexual enjoyment from a photograph of a nude minor. Hunter, 550 N.W.2d at 463. In rejecting the defendant’s claims, the court found that the term “nudity” is not vague because it allows individuals to distinguish between prohibited conduct and protected expression, and thus provides fair warning of what conduct is prohibited. Id. at 465. Further, the court noted that the common meaning of the term “nudity” is apparent. Id. Additionally, the court held that the phrase “for the purpose of arousing or satisfying the sexual desires of a person” is not vague. Rather, the court reasoned, “the challenged phrase allows the general public and those enforcing the statute to distinguish between prohibited conduct and protected expression.” Id. at 465.
With this constitutional landscape as background, we turn to
Moreover, an ordinary person can certainly understand what conduct is prohibited and would have no need to guess at the meaning of the term “nudity” under
Furthermore, appellant’s argument that the “any person” language in the nudity qualifier allows for arbitrary and discriminatory enforcement also fails. The “nudity” qualifier is just that — a qualifier — restricting the statute’s reach to only those forms of nudity that are depicted for sexual stimulation or gratification. Consequently, the statute does not reach innocent family or artistic images of minors in a state of simple nudity, e.g., a photograph of a baby’s bath. Additionally,
We also find that
Appellant’s overbreadth challenge fails because the statute proscribes possession of depictions of minors engaged in “prohibited sexual acts,” one of those acts being nudity, but only when depicted for the purpose of sexual stimulation or gratification. The qualifier to the term “nudity” narrows and limits the reach of the statute. In doing so, the General Assembly made clear that it did not seek to punish individuals for viewing or possessing innocent materials containing naked minors, again, e.g., a photograph of a baby’s bath. As the U.S. Supreme Court explained in Osborne, the purpose of such language is to allow the “possession or viewing of material depicting nude minors where that conduct is morally innocent. Thus, the only conduct prohibited by the statute is conduct which is not morally innocent[.]” Osborne, 495 U.S. at 113 n. 10, 110 S.Ct. at 1698 n. 10 (quotations omitted). Here, as in Osborne, the statute’s restrictions are not so broad as to proscribe all depictions of minors in a state of nudity, but rather only those depictions which constitute child pornography as defined under
There clearly is a compelling state interest in the protection and safeguarding of minors. The purpose of
II. Multiple Counts and Sentences
Appellant next challenges the legality of being tried for multiple counts of Sexual Abuse of Children, and the propriety of being separately sentenced.13 Appellant argues that the trial court erred in converting a single act of possession into 28 possessory offenses based solely on the number of pornographic photographs or depictions. Citing this Court’s OAJC in Gatling, 570 Pa. 34, 807 A.2d 890, appellant avers that the 28 convictions should have merged into a single possession charge for sentencing purposes. Appellant asserts that
Appellant argues that the General Assembly did not intend to subject a defendant to separate convictions and sentences for each piece of child pornography possessed under
The Commonwealth responds that, under Section 9765 of the Pennsylvania Sentencing Code and Gatling, unless the multiple offenses arise from a single criminal act, the doctrine of merger is not implicated. See
The Commonwealth charges that appellant’s reliance on the merger doctrine is further misplaced because the downloading, saving, copying and viewing of the child pornography in this case was done on several dates, thus obviously creating several offenses. The Commonwealth echoes the Superior Court panel below that possession of each image of child pornography is a different act, and thus, a different offense because each time a child is photographed in this context, that child is violated and victimized. The Commonwealth concludes that defendants who commit such multiple violations should not receive a volume discount for the many separate crimes they commit.
The issues for review involve statutory interpretation. “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.”
The Superior Court panel below, and both parties here, couch these issues in terms of sentencing merger principles. Section 9765 provides that:
No crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense. Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense.
In Anderson, the Court held that “in all criminal cases, the same facts may support multiple convictions and separate sentences for each conviction except in cases where the offenses are greater and lesser included offenses.” Anderson, 650 A.2d at 22. The Anderson Court explained that “the same facts” language “means any act or acts which the accused has performed and any intent which the accused has manifested, regardless of whether these acts and intents are part of one criminal plan, scheme, transaction or encounter, or multiple criminal plans, schemes, transactions or encounters.” Id. The Court further made note that a main concern regarding the merger doctrine is to “avoid giving criminals a Volume discount’ on crime” and further explained that “[i]f multiple acts of criminal violence were regarded as part of one larger criminal transaction or encounter which is punishable only as one crime, then there would be no legally recognized difference between a criminal who robs someone at gunpoint and a criminal who robs the person and during the same transaction or encounter pistol whips him in order to effect the robbery.” Id.; see also Commonwealth v. Nolan, 579 Pa. 300, 855 A.2d 834, 839 (2004); Commonwealth v. Belsar, 544 Pa. 346, 676 A.2d 632, 634 (1996).
In Gatling, the case relied upon by the Superior Court panel in the case sub judice, the OAJC noted that the question of “whether the facts on which both offenses are charged constitute one solitary criminal act” must first be answered. Gatling, 807 A.2d at 899. Following that determination, the OAJC in Gatling explained that “[i]f the offenses stem from two different criminal acts, merger analysis is not required. If, however, the event constitutes a single criminal act, a court must then determine whether or not the two convictions should merge.” Id. Thus, the OAJC in Gatling would have adopted a rule whereby “an overarching chain of events does not constitute a single criminal act when there is a break in that chain.” Id. at 900.
The purpose of the merger doctrine is double jeopardy-based, i.e., to safeguard against multiple punishments for the same act. See, e.g., Commonwealth v. Buffington, 574 Pa. 29, 828 A.2d 1024, 1029 (2003) (“The Double Jeopardy Clause bars successive prosecutions and multiple
Following its decision in this case, the Superior Court considered application of the merger doctrine under Section 6312(d) in Commonwealth v. Koehler, 914 A.2d 427 (Pa.Super.2006). The Koehler court rejected the defendant/possessor’s argument that “the imposition of 14 consecutive sentences created an illegal sentence, violating his constitutional right to be free from double jeopardy where, under the plain language of Section 6312(d), he committed but a single possessory offense warranting a single sentence.” Id. at 438-39 (footnote omitted). The Koehler panel held that the “statute expressly criminalizes the possession of ‘any ... computer depiction,’ not the possession of any computer hard-drive containing such depictions.” Id. at 439. Consequently, because the “record established that [the defendant] obtained each of the 14 video clips individually, at separate times, such that he possessed 14 separate computer depictions[,] ... [i]t was [] appropriate under Section 6312(d) to charge, convict, and sentence [the defendant] separately for each act of possessing each video clip[.]” Id. The panel therefore found that the merger doctrine was inapplicable “given the separate acts of possession occurring in this case[.]” Id.
With these principles in mind, we have no difficulty in concluding that double jeopardy protections are not implicated in the present case. Furthermore, the merger doctrine is of no benefit to appellant because a plain reading of the statute makes it apparent that the General Assembly intended possession of each pornographic image as a discrete and separate criminal act under Section 6312(d). Appellant’s offenses do not represent a single criminal act, and therefore his multiple criminal acts support his multiple convictions and sentences. There is nothing in this Court’s merger case law which supports the contention that only one sentence may be imposed for multiple criminal acts which result in multiple convictions.
Under Section 6312(d), it is a violation of the law for “[a]ny person who knowingly possesses or controls any book, magazine, pamphlet, slide, photograph, film, videotape, computer depiction or other material”
Furthermore, it is not difficult to discern why the General Assembly would target individual instances of possession. Each use of a minor to create a visual depiction of child pornography constitutes a separate and distinct abuse of that child, and thus represents an individual violation of the statute. As noted in United States v. Esch, “the key element of the offense is the use [of] a minor to engage in sexually explicit conduct for the purpose of creating a visual depiction of such conduct____Each photograph depended upon a separate and distinct use of [a minor].” Esch, 832 F.2d 531, 542 (10th Cir.1987). As the Superior Court noted below, each image of child pornography -victimized each child and subjected the child to “precisely the type of harm the statute seeks to prevent.” Davidson, 860 A.2d at 583. We conclude that each image of child pornography creates a permanent record of a child’s abuse, which results in continuing exploitation of a child when the image is subsequently viewed.
Our conclusion is bolstered by an examination of the law in other jurisdictions. The majority of jurisdictions facing such challenges have engaged in, inter alia, a “multiplicity analysis,” that is, the propriety of “the charging of a single offense in separate counts,” Sanabria v. United States, 437 U.S. 54, 65 n. 19, 98 S.Ct. 2170, 2179 n. 19, 57 L.Ed.2d 43 (1978). Often, the multiplicity analysis is applied exclusively. Although appellant does not specifically forward such a multiplicity claim here, to make better sense of the jurisprudential experience in our sister states and lower federal courts, some discussion is appropriate. Of the other jurisdictions that have considered similar challenges, a significant majority have found that possession of each image of child pornography constitutes a separate offense and does not implicate double jeopardy, the conclusion that we have found here. See, e.g., Esch, 832 F.2d at 541-42 (“[E]ach use of a minor to create a visual depiction constitutes a separate and distinct violation, and thus represents the correct unit of prosecution.... [Therefore,] [t]he indictment properly charged separate counts for each of the photographs produced.”); People v. Renander, 151 P.3d 657, 660 (Colo.App.2006) (“each offending image constitutes a separate and distinct sexual exploitation and therefore is a separate, chargeable offense” and constitutes an allowable unit of prosecution); Fink v. State, 817 A.2d 781, 788 (Del.2003) (“The clearest reading of the statute [ ] is that each individual ‘visual depiction,’ of child pornography that is knowingly ... possessed by a defendant constitutes the basis for a separate offense under the statute []____ Each picture is a crime against the child depicted as well as an offense to society.”); accord Sisson v. State, 903 A.2d 288, 310 (Del.2006);
Given our analysis above, it is apparent that Bell’s rule of lenity is inapplicable. The General Assembly fixed a unit of prosecution: possession of each singular image or depiction of child pornography. Appellant is not entitled to a volume discount.
In summary, we hold that charging, trying, convicting and sentencing appellant for multiple counts of possession of child pornography is not unlawful under the statute. Appellant was not punished multiple times for the same act so as to constitute a violation of the Double Jeopardy Clause. Appellant was properly subject to punishment multiple times for committing multiple, independent violations of
For the foregoing reasons, we hold that
Notes
.
. The Commonwealth elected to pursue only 50 counts of Sexual Abuse of Children against appellant at trial.
. A conviction under
. Article I, Section 9 provides:
In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and, in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land. The use of a suppressed voluntary admission or voluntary confession to impeach the credibility of a person may be permitted and shall not be construed as compelling a person to give evidence against himself.
. Article I, Section 7 of the Pennsylvania Constitution provides:
The printing press shall be free to every person who may undertake to examine the proceedings of the Legislature or any branch of government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty. No conviction shall be had in any prosecution for the publication of papers relating to the official conduct of officers or men in public capacity, or to any other matter proper for public investigation or information, where the fact that such publication was not maliciously or negligently made shall be established to the satisfaction of the jury; and in all indictments for libels the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.
. The General Assembly amended
(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.
(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.
The General Assembly‘s amendments do not affect the issues presented for our review.
. In Miller, the Court explained that to determine whether a work is obscene, [t]he basic guidelines for the trier of fact must be: (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Miller, 413 U.S. at 23-24, 93 S.Ct. at 2614-2615 (citations and quotations omitted).
. At the time of the Osborne decision in 1990, 19 States had statutes proscribing possession of child pornography. As of 2007, the United States Congress and the legislative bodies of all 50 States have promulgated statutes which prohibit the possession of child pornography, thus comparable to the statute at issue in the case sub judice,
. The Superior Court has entertained two other vagueness and/or overbreadth challenges to
. For example, the Delaware Code provides in relevant part that a person is guilty of possession of child pornography when:
(1) the person knowingly possesses any visual depiction of a child engaging in a prohibited sexual act or in the simulation of such an act; or
(2) the person knowingly possesses any visual depiction which has been created, adapted, modified or edited so as to appear that a child is engaging in a prohibited sexual act or in the simulation of such an act.
DelCode Ann tit. 11,
In New Jersey,
Any person who knowingly possesses or knowingly views any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, including on the Internet, is guilty of a crime of the fourth degree.
. In the next sentence of the opinion, the trial court explains that “[w]ith respect to the remaining images, which depicted only nudity and not depicting explicit sexual acts, the fact that they were found among images depicting explicit sexual acts proves that such nudity was for the purpose of sexual stimulation or gratification as required by the provisions of r
. Considering the content of the images alone, it is apparent how the trial court came to its ultimate conclusion of guilt on the 28 images at issue here. Although the children in some of the 28 images are not engaged in an overt sexual act, the images contain nudity, which the trial court reasonably found was depicted for the purpose of sexual stimulation or gratification.
. Since appellant received identical, concurrent sentences for each conviction, he would receive no immediate sentencing benefit if he were to prevail. However, success on this appeal could be significant in terms of the collateral consequences with respect to his multiple individual convictions.
. The protections afforded by the double jeopardy clauses of the United States Constitution and of Art. I, Section 10 of the Pennsylvania Constitution are generally coextensive. See Commonwealth v. Fletcher, 580 Pa. 403, 861 A.2d 898, 912 (2004); Pap‘s AM. v. City of Erie, 571 Pa. 375, 812 A.2d 591, 607 (2002); Commonwealth, Dep’t of Transp. v. McCafferty, 563 Pa. 146, 758 A.2d 1155, 1160 n. 8 (2000).
. The concurring and dissenting‘opinions in Jones did not take issue with the points for which we cite to Jones today.
. To similar effect are the following: State v. Rhoades, 690 N.W.2d 135 (Minn.App.2004) (where defendant’s conduct of possessing child pornography involved multiple victims, defendant may be charged with, convicted of and sentenced for multiple counts); State v. Cobb, 143 N.H. 638, 732 A.2d 425, 433-34 (N.H.1999) (“[T]he displaying or possessing of each photograph constitutes a separate offense.... [T]he legislature intended ihe unit of prosecution to be each ... photograph[.]” (citations omitted)); State v. Howell, 169 N.C.App. 58, 609 S.E.2d 417, 421 (2005) (“Intending to protect individual minors from harm, the General Assembly wrote [the statute] to support a charge for each image.... We conclude, therefore, that the legislature intended .... that a defendant could be charged and convicted on multiple counts for the 43 child pornography images on his computer hard drive.”); State v. Martin, 674 N.W.2d 291, 303 (S.D.2003) (defendant‘s convictions on multiple counts of possession of child pornography for images located on his computers did not violate double jeopardy because “the acts ... are [not] the same,” the “images of child pornography found on [the defendant‘s] computers were downloaded and saved at separate times[,]” and the “pictures involved the exploitation of different children”); Roise v. State, 7 S.W.3d 225, 232 (Tex.App. 1999) (“The simultaneous possession of each item of child pornography constitutes a separate offense or an allowable unit of prosecution.”) (citation and quotation omitted), accord Vineyard v. State, 958 S.W.2d 834 (Tex.Crim. App.1998); State v. Morrison, 31 P.3d 547, 556 (Utah 2001) (“The clearest reading of the statute is that each individual visual representation’ of child pornography that is knowingly possessed by a defendant constitutes the basis for a separate offense[.] ... [Thus, defendant‘s] possession of multiple photographs depicting child pornography constituted multiple violations of [the statute].”); State v. Gailus, 136 Wash. App. 191, 147 P.3d 1300, 1304 (2006) (legislature intended that “each digital file containing a ‘photograph’ ... depicting a minor engaged in sexually explicit conduct, provides the basis for a single ‘unit of prosecution,’ regardless of whether the files are stored on a single compact disc”), accord State v. Ehli, 115 Wash.App. 556, 62 P.3d 929, 932 (2003); State v. Multaler, 252 Wis.2d 54, 643 N.W.2d 437, 451 (Wis. 2002) (plain language of statute provides that possessor of any photograph or other pictorial reproduction has violated statute; therefore, defendant may be charged separately for each pornographic image involving a child saved on his computer disc); State v. Schaefer, 266 Wis.2d 719, 668 N.W.2d 760, 778 (Ct.App.2003) (Each image saved on Zip disc that contains child pornography provides basis for an individual charge because charges are different in fact and separate charges). But see, United States v. Reedy, 304 F.3d 358, 368-69 (5th Cir.2002) (because statute may apply to both single images and more than one image, appropriate unit of prosecution is ambiguous and ambiguity must be resolved in favor of defendant); Girard v. State, 883 So.2d 717, 723 (Ala.2003) (“proper unit of prosecution for the offense of possession of [child pornography] is the possession of the obscene matter, regardless of how many items are actually possessed“); State v. Muhlenbruch, 728 N.W.2d 212, 214 (Iowa 2007) (defendant, who possessed computer containing numerous pornographic images of minors, may only be charged with one count of possession of child pornography because statute “prohibits the ‘possession’ of a ‘computer’ or ‘other print or visual medium ’ that depicts a minor engaged in prohibited sexual acts”) (emphasis added); State v. Donham, 29 Kan.App.2d 78, 24 P.3d 750, 755 (2001) (under statute, “possessing a floppy disk containing one or more images of child pornography is a single act. As a result, possessing a floppy disk containing two or more sexually explicit images of a child cannot be divided into two or more distinct acts”); State v. Fussell, 941 So.2d 109, 125 (La.Ct.App.2006) (“A reading of [the statute] convinces us it is ambiguous as to what constitutes an allowable unit of prosecution. Therefore, ... this ambiguity must be resolved in favor of lenity and the rd]efendant’s multiple convictions for possession of pornography should be reduced to a single conviction!.]”); State v. Pickett, 211 S.W.3d 696, 706 (Tenn.2007) (although charged with 11 counts of possession of child pornography, evidence established only one offense because State did not demonstrate that defendant formed new intent as to each image and did not establish that legislature intended cumulative punishment); State v. Sutherby, 138 Wash.App. 609, 158 P.3d 91, 94 (2007) (because Legislature failed to specify unit of prosecution in statute, court must resolve ambiguity in favor of defendant; therefore, defendant’s ‘‘violation of the statute by simultaneously possessing multiple materials in the same location is one unit of prosecution for which he is subject to only one conviction”).
. In Bell, a defendant charged with two identical violations of one statute argued that he had committed only a single offense and could not be subjected to cumulative punishment. The Supreme Court explained that, in such a situation, the task of the Court was to determine the allowable unit of prosecution under the statute, which did not explicitly provide such information.
Concurrence Opinion
concurring and dissenting.
I join the majority opinion in its holding that
To come to this conclusion, I look to the words of the statute which are the key to ascertaining the intent of the Legislature.
As to free speech guarantees, the United States Supreme Court stated in New York v. Ferber, 458 U.S. 747, 765 n. 18, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), that depictions of children in a state of nudity, without more, constitute protected expression under the First Amendment. On the other hand, the Court found that images of minors involved in lewd sexual conduct had “exceedingly modest, if not de minimis” value that is outweighed by the state’s compelling interest in protecting children from sexual exploitation and abuse. See Ferber 458 U.S. at 762-64, 102 S.Ct. 3348.
The next constitutional tenet to consider is the Due Process requirement of notice. In order to avoid a facial void-for-vagueness challenge, the statute must give fair warning of what conduct it criminalizes. Commonwealth v. Mack, 467 Pa. 613, 359 A.2d 770, 771 (1976). To provide proper warning, the statute must provide a standard
It is notable that this construction of
Clarifying the objective standard in
This objective standard further honors the First Amendment which protects artistic
Eleven of the images for which the defendant in this case was convicted must be remanded to the factfinder for consideration under the standard as explained above. This is because these images are of nude children not engaged in overt sexual acts, and therefore, a determination must be made with respect to whether each image was depicted with the purpose of sexually stimulating the viewer. As these images were in the hands of a third-party possessor who did not have knowledge of the actual intent of the depicter, the images must be evaluated to insure that each image, on its face, gives notice of its criminality, irrespective of the fact that the defendant in this case chose to store these images with his pornography collection. I would remand Exhibits C-7, C-9, C-ll, C-12, C15, C-16, C-17, C-18, C-19, C-38 and C-45 for reconsideration of Counts III, V, VII, VIII, XI, XII, XIII, XIV, XV, XXXIV and XLI to consider if each image is a depiction of a child or children who are merely nude, which is First Amendment protected expression, or if the intent of the depicter was to titillate the viewer.3 Because of the nature of the sentencing scheme imposed, I would vacate the sentence of the trial court, remand for reconsideration of the counts delineated above and for imposition of new sentence, if necessary. Otherwise, I join the majority opinion.
. There may be cases where the prurient intent of the depicter is not manifest in a particular image, but the possessor nonetheless has actual notice of the depicter‘s intent. For example, the possessor has control of a series of photographs clearly depicting the same child and in some of the series the child is engaged in a prohibited sexual act while in others the child is simply nude. The fact that the third-party possessor has the entire series would put him or her on notice of the depicter‘s intent to cause sexual stimulation, which is criminal under
. As this case is related to the prosecution of the depicter, the notice requirement did not narrow the field of relevant circumstantial evidence, as it would have if it was a prosecution of a third-party possessor.
. To make this determination about C-45, the factfinder from the bench trial will also have to consider all exhibits from C-42 through C-53, because C-45 was one of a series, and if the defendant saw the other images in the series, it would inform a decision of whether or not he was on notice of the depicter’s intent in C-45.
Concurrence Opinion
concurring and dissenting.
I join Mr. Chief Justice Cappy in recommending a remand of this case to the trial court to make clear factual findings regarding whether each identified image was depicted for the purpose of sexually stimulating the viewer based purely on the content of the image, rather than the context in which the image is found.
I write separately to address an issue raised during my consideration of whether the statute provides for separate convictions for each individual photograph. I fully join the Majority’s holding that the possession of each photograph constitutes a separate criminal act based on the General Assembly’s use of the singular form of “photograph,” or “computer depiction.”
The statute allows for convictions for possession of a single “photograph” and for “a book,” notwithstanding that such book could contain multiple photographs of child pornography. The potential for arbitrary and capricious enforcement arises in deciding whether a book with 500 photographs constitutes one count, as one book, or 500 separate counts, by virtue of the 500 individual photographs contained within it. If the book gives rise to 500 individual acts of criminal conduct, then I question the meaning of inclusion of the term “book” in the pertinent statutory section. Conversely, if the book gives rise to only one criminal act, which is consistent with a fair reading of the statute, then the determinative fact appears to be whether the defendant left his photographs loose, or organized them into a “book;” a term which could perhaps include a traditional photo album or loose leaf binder. The ambiguity highlighted herein has the potential to raise difficult distinctions for prosecutors trying to do the right thing, and for reviewing courts. I respectfully recommend that the legislature consider this issue, and provide district attorneys and courts with its wise guidance through statutory amendment before these questions come before us.
My concerns, however, do not affect my decision in the case at bar because the defendant did not raise this ambiguity and because it would not vary the counts charged in this case. Accordingly, I join Chief Justice Cappy’s concurring and dissenting opinion in favor of a remand to consider eleven specific photographs.