Argued October 16, 2012
Appeal from the order of the Superior Court at No. 2108 MDA 2009 dated June 27, 2011 Affirming the judgment of sentence of the Cumberland County Court of Common Pleas, Criminal Division, at No. 21-CR-0831-2007 dated May 12, 2009. Appeal allowed January 6, 2012 at 530 MAL 2011. Trial Court Judge: Merle L. Ebert, Jr., Judge. Intermediate Court Judges: Correale F. Stevens, Jacqueline O. Shogan, Sallie Mundy, JJ.
For Jeffrey Wayne Baker, APPELLANT: Timothy Lee Clawges, Esq., Cumberland County Public Defender's Office; Charles P. Mackin Jr., Esq., Charles P. Mackin, P.C.
For Defender Association of Philadelphia, APPELLANT AMICUS CURIAE: Karl Baker, Esq., Ellen T. Greenlee, Esq., Peter Rosalsky, Esq., Defender Association of Philadelphia.
For Commonwealth of Pennsylvania, APPELLEE: David James Freed, Esq.; Matthew Peter Smith, Esq., Cumberland County District Attorney's Office.
For Pennsylvania District Attorney's Association, APPELLEE AMICUS CURIAE: Hugh J. Burns Jr., Esq.; Ronald Eisenberg, Esq., Philadelphia District Attorney's Office; Edward F. McCann Jr., Esq., Philadelphia District Attorney's Office; R. Seth Williams, Esq.
For Attorney General's Office, APPELLEE AMICUS CURIAE: Kathleen Granahan Kane, Esq., Linda L. Kelly, Esq., Richard A. Sheetz Jr., Esq., Amy Zapp, Esq., PA Office of Attorney General.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ. MR. JUSTICE McCAFFERY. Former Justice Orie Melvin did not participate in the consideration or decision of this case. Messrs. Justice Saylor, Eakin and Baer join the opinion. Mr. Chief Justice Castille files a concurring opinion in which Mr. Justice Saylor and Madame Justice Todd join.
[621 Pa. 404] MR. McCAFFERY,
At issue in this discretionary appeal is whether the 25-year mandatory minimum sentence of imprisonment imposed for Appellant's second conviction of possessing child pornography is grossly disproportionate to the crime and, therefore, unconstitutional. We determine that the punishment is not grossly disproportionate to the crime and, accordingly, we affirm.
Appellant was first convicted of possession of child pornography in 2001. That conviction resulted in a sentence of five years' intermediate punishment which Appellant completed in September 2006. In January 2007, the police received a cyber-tip
from the National Center for Missing and Exploited Children that Appellant had sent and received images of child pornography by computer. A search warrant was issued for computers and related items located in Appellant's residence. The evidence seized from Appellant's bedroom as a result of the search included a computer and multiple DVDs containing dozens of video clips and hundreds of photographs of children engaging in sex acts. Subsequent forensic analysis showed that the computer had been used to share this illicit material online. Appellant was arrested and arraigned on child pornography charges, and the Commonwealth, although not required to do so at that point in the proceedings, informed Appellant that if convicted, he would be subject to a 25-year mandatory minimum sentence under the provisions of the Sentencing Code, 42 Pa.C.S. § § 9701-9799.9, at Section 9718.2 (Sentences for sex offenders).
At Appellant's jury trial, the Commonwealth introduced into evidence 29 separate video clips of children engaging in sex acts that had been recovered from the DVDs and computer [621 Pa. 405] seized from Appellant's residence. For each clip, the Commonwealth presented corresponding expert testimony that at least one of the persons seen engaging in sex was less than eighteen years of age. The videos were graphic, and a number of them showed very young children, some of whom appeared to be toddlers, being anally and/or vaginally raped by adult men. The jury convicted Appellant of 29 counts of " sexual abuse of children - child pornography," 18 Pa.C.S. § 6312(d)(1), and one count of criminal use of a communication facility, 18 Pa.C.S. § 7512.
Following conviction but before sentencing, the Commonwealth gave Appellant and the court formal notice of its intention to proceed under the mandatory minimum sentencing provisions set forth at Section 9718.2. The court ordered a pre-sentence investigation and a hearing to determine whether Appellant was a sexually violent predator (" SVP" ) pursuant to Section 9795.4. At the SVP hearing, the Commonwealth presented evidence that Appellant had sent instant messages on the computer
seized from his bedroom, attempting to solicit adult women in the Philippines to commit sex [621 Pa. 406] acts upon children at his direction while he watched via live web-cam. A member of the Sexual Offender's Assessment Board testified that in his opinion, Appellant met the diagnostic criteria for pedophilia and the legal criteria to be deemed an SVP. Thereafter, the court determined that Appellant was an SVP, and sentenced him to 29 concurrent mandatory terms of 25 to 50 years' imprisonment for his convictions of sexual abuse of children - child pornography, and a concurrent sentence of 1 to 7 years' imprisonment for his conviction of criminal use of a communication facility. The court also ordered that Appellant be subject to lifetime registration with the state police under Section 9795.1(b)(3).
Appellant appealed to the Superior Court, claiming, inter alia, that his sentence under Section 9718.2 violated the prohibition against " cruel and unusual punishments" contained in the Eighth Amendment to the United States Constitution, and the prohibition against " cruel punishments" contained in Article 1, Section 13 of the Pennsylvania Constitution. The Superior Court affirmed the judgment of sentence, and determined, as a threshold matter with respect to Appellant's constitutional challenge, that Appellant had failed to show that the length of his sentence raised an inference of gross disproportionality when compared to the gravity of his crime. Commonwealth v. Baker, 2011 PA Super. 131, 24 A.3d 1006, 1029 (Pa.Super. 2011). This Court granted allowance of appeal to address whether Section 9718.2 of the Sentencing Code, mandating a 25-year minimum sentence of imprisonment for offenders who have been twice convicted of possessing child pornography, is grossly disproportionate to the crime and, therefore, unconstitutional.
" The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences which are grossly disproportionate to the crime." Commonwealth v. Hall, 549 Pa. 269, 701 A.2d 190, 209 (Pa. 1997) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991)). There is no [621 Pa. 407] prior decision from this Court addressing challenges to non-capital mandatory recidivist sentencing statutes under the Eighth Amendment or Article I, Section 13.
">In Commonwealth v. Spells, 417 Pa.Super. 233, 612 A.2d 458, 462 (Pa.Super. 1992) (en banc), the Superior Court applied the three-prong test for Eighth Amendment proportionality review set forth by the United States Supreme Court in Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), and determined that a five-year mandatory minimum sentence for offenses committed with a firearm does not offend the Pennsylvania constitutional prohibition against cruel punishments. The Spells court observed that the three-prong Solem proportionality test examines: " (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." Spells, 612 A.2d at 462 (quoting Solem, 463 U.S. at 292). The Spells court correctly observed that a reviewing court is not obligated to reach the second and third prongs of the test unless " a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." Spells, supra at 463
(quoting the controlling opinion of Justice Kennedy in Harmelin, s ...