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Commonwealth v. Diodoro

May 26, 2009

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
ANTHONY DIODORO, APPELLANT



Appeal from the order of the Superior Court, entered August 23, 2007, at No. 1889 EDA 2005, affirming the Judgment of Sentence of the Court of Common Pleas of Delaware County, entered May 23, 2005, at No. 2200-04 932 A.2d 172 (Pa. Super. 2007).

The opinion of the court was delivered by: Mr. Chief Justice Castille

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, JJ.

ARGUED: May 14, 2008

OPINION

In the instant appeal, the limited question presented for this Court's review is whether accessing and viewing child pornography over the internet constitutes "control" of such pornography under 18 Pa.C.S. § 6312(d). For the reasons that follow, we hold that it does, and accordingly, we affirm the order of the Superior Court.

On or about November 20, 2003, the Ridley Township Police Department obtained a search warrant for appellant Anthony Diodoro's personal computer and seized the computer from his residence in Delaware County. Following forensic examination of appellant's computer, it was determined that the computer contained approximately 340 images of suspected child pornography and thirty additional images that were known to be child pornography. Consequently, appellant was arrested and charged with thirty counts of Sexual Abuse of Children in violation of 18 Pa.C.S. § 6312(d)*fn1 and one count of Criminal Use of a Communication Facility in violation of 18 Pa.C.S. § 7512(a).*fn2

At a jury trial occurring on February 24 and 25, 2005, held before the Honorable Joseph P. Cronin, Jr., the Commonwealth's computer forensics expert, Pennsylvania State Trooper Peter J. Salerno, testified to the specifics of his forensic examination of appellant's computer. Trooper Salerno explained that he searched the images and web history on appellant's hard drive using forensic software, which revealed, inter alia, web pages pertaining to child pornography websites, and 370 images relating to child pornography that were stored in the cache files or unallocated space of the hard drive. Notes of Testimony, 2/23/05, at 223, 229. Trooper Salerno testified that finding the images of child pornography stored in the cache files indicated that someone accessed the child pornography websites and by clicking the "next" button or a specific image, accessed and viewed the various images. Id. at 230-31. Trooper Salerno also noted that because of the large quantity of images stored in the cache files, it would have taken an individual a considerable amount of time to go through the images. Id. at 248. Furthermore, appellant and the Commonwealth stipulated as follows:

The [thirty] unlawful images located on the hard drive of [appellant's] computer depicted, pictured and showed female children engaged in prohibited sexual acts. Those acts include sexual intercourse, oral sexual intercourse and lewd exhibition of genitals.

The second fact is that the [thirty] unlawful images were viewed by [appellant] on his computer while he was searching the World Wide Web for images of females under age [sixteen].

Id. at 250-51.

A jury convicted appellant of all counts charged. On May 23, 2005, the trial court sentenced appellant to an aggregate term of nine to twenty-three months of imprisonment, followed by five years' probation. Additionally, appellant was required to submit to DNA testing and was prohibited from: (1) having unsupervised use of a computer; (2) having unsupervised contact with children under the age of eighteen; and (3) using drugs or alcohol.

On June 21, 2005, appellant filed a notice of appeal and a Concise Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925(b). In his Rule 1925(b) statement, appellant challenged the sufficiency of evidence with respect to each of the two offenses for which he was convicted. The statement read, in its entirety, as follows:

The matters being complained of on appeal are as follows:

1. The evidence, including the presence of images of female children engaged in prohibited sexual acts in the cache files of [appellant's] computer and [appellant's] admission that he had been searching the internet to view images of females under age [sixteen], was insufficient to support [appellant's] conviction for ...


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