The opinion of the court was delivered by: Judge Pellegrini
Submitted: October 30, 2009
BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge, HONORABLE KEITH B. QUIGLEY, Senior Judge.
Kenneth Getz (Getz) appeals from an order of the Pennsylvania Board of Probation and Parole (Board) denying his request for administrative relief and recommitting him for violations of his parole. We affirm the Board's order.
Getz was originally sentenced to serve a state term of three to 10 years for aggravated indecent assault (Megan's Law*fn1 sex offender). He was released on supervised parole on November 14, 2005, with the mandate that he not have any contact with minor females for any reason. A special parole condition was also imposed that prohibited him to possess photographs of anyone under the age of 18 years or child-oriented videos without prior written permission of Probation/Parole Supervision Staff.
According to a written report by Getz's parole agent dated November 10, 2008, on November 6, 2008, two parole agents were performing a search of his apartment when they found three DVDs on top of Getz's television. The movies were Shrek, Santa Clause 3 and Superman Doomsday. Also found were a seven-inch folding lock-back knife and a digital camera under Getz's bed. When the digital camera's card was reviewed, it showed four photographs of an approximately eight-year old child holding a cat while sitting on Getz's bed in his apartment. When questioned as to the identity of the child, at first Getz could not identify the child. Then, after about five minutes of questioning, Getz stated that he thought it was his half-brother. Parole Agent Talasky believed the pictures appeared to be that of a female.
At the violation hearing before the Board, Getz admitted that he owned the knife which was given to him by his grandfather and that he had it sitting on display. He had no intention of harming anyone with it because it was just a showpiece. He said he wasn't aware that it was forbidden but he was not given permission to have the knife by the Board. Regarding the pictures that were taken with the camera that was found in his apartment, he stated that he did not take the pictures. He stated that he knew who the child in the picture was -- Courtney Griffin's brother -- and it was taken either by his sister or Courtney, his ex-fiancé. As for the DVDs that were in his apartment, he said that he had done a remodeling job for the landlord, and that the landlord had given him a whole bunch of DVDs including those that the parole agent found. He also stated that just recently in prison, they showed Kung Fu Panda which was a children's movie. Parole Agent Talasky testified that the pictures admitted into evidence of the child were made from the digital card found with the camera from inside Getz's apartment and that the pictures were from the inside of Getz's apartment.
By decision dated March 12, 2009, the Board notified Getz that he was being recommitted to a State Correctional Institution as a technical parole violator to serve 12 months backtime for violating condition #5B for possession of a weapon; Special Condition #7 (Count 1) for possession of prohibited photos; and Special Condition #7 (Count 2) for possession of child-oriented videos/DVDs. The Board indicated that it relied upon his parole agent's testimony, documentary evidence and photos. The notice stated that Getz's maximum release date was November 5, 2010.
Getz filed a request for administrative relief contesting all of the violations for which he received an additional 12 months of backtime. He argued that the Commonwealth failed to prove that he knew of the photos or had taken them. "The photos were on film in a camera in Mr. Getz's room. The film was developed later by someone else and the pictures were taken by someone else. The pictures were nondescript, inoffensive, snapshots of a child approximately 10 years of age. In any case, Mr. Getz did not know about the pictures and did not take them. They were, in fact, not pictures when the parole agent picked them up as film." Regarding the DVDs, Getz argued that the Commonwealth failed to prove that he possessed them with any insidious intent, and that none of them were specifically geared to children. Finally, while Getz was aware that he had a knife, he was not aware that it was illegal and that it was a family heirloom.
The Board denied Getz's request for administrative relief stating that it determined that sufficient evidence was presented at the violation hearing to recommit him for all three violations based on the credible testimony of the parole agent and the documentary evidence that was presented. "[T]he fact that Mr. Getz offered contradictory testimony does not mean the Board was required to accept his version. Chapman v. Pennsylvania Board of Probation and Parole, 484 A.2d 413 (Pa. Commw. Ct. 1984)." (Board's May 20, 2009 decision.) This appeal by Getz followed.*fn2
First, Getz contends that the Board erred in recommitting him because the Board failed to demonstrate that he violated Special Condition #7 by possessing photographs of anyone under the age of 18 without the written permission of Parole Supervision Staff.*fn3 In making this argument, he contends that he was not in possession of "photographs" but only was in possession of a digital camera which contained a digital file that when reassembled, represented someone who appeared to be under the age of 18. He explains:
A photograph is defined as "a picture or likeness obtained by photography," while photography is "the art or process of producing images on a sensitized surface (as a film) by the action of radiant energy and esp. light." Webster's New Collegiate Dictionary 885 (9th ed. 1989). Therefore, in order to be a photograph, the image must be produced on a surface that reacts to radiant energy. Digital imaging does not use such a process; rather, the images are stored in binary form until they are accessed by software that can produce the image. As such, Petitioner was not in possession of a photograph.
Getz continues to explain:
The Commonwealth may argue Petitioner was in possession of a digital depiction because images viewed on a digital screen are digital depictions, which are pictures by definition. However, Petitioner was not in possession of a digital depiction, he was in possession of a binary file. When Petitioner's parole officer picked up the digital camera there were no depictions on the screen as the digital card was stored near the digital camera. (C.R. at 45). Petitioner was not even aware of the depiction as he had not taken it and it was stored unseen in the memory card. (C.R. at 47). In order for the depictions to appear, the officer had to turn on the camera and then physically search through the memory card. (C.R. at 45). Furthermore, in order for the officer to present the images at the hearing, he had to access ...